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under a warrant issued by (b) in pursuance of a senten ce of (c)... ......................................... .passed upon him by a (d)... ............. ...Security Force Court held at... ......... .on... ...... ..And whereas (e)... .................................................. ..has, in the exercise of the power conferred upon him by the Border Security Force Act, passed the following order regarding the aforesaid sentence: that is to say: - (f)... This is to require and authorise you to keep the said (name)... ..................................... ..in your custody together with this warrant in the said prison as by law is required until he shall be delivered over by you with the said warrant to the proper authority and custody, for the purpose of his undergoi ng the punishment of imprisonment for life under the said order. And this is further to require and authorise you to return to me the original warrant of commitment in lieu where of this warrant is issued. *The period of such imprisonment will recko n from the (g). Given under my hand at... ................................................... .this the... ............... .day of... .......................... .20... Signature (h) BSF RULES 195 (a) Enter name of civil prison. (b) Enter name or designation of officer who singed original warrant. (c) Enter original sentence (if this was reduced by the confirming officer or other superior authority the sentence should be entered thus: - Life Imprisonment reduced by confirming officer to 10 years.) (d) General. (e) Name and designation of authority varying the sentence. (f) Order to be sent out in full. (g) Enter date on which original senten ce was signed. (h) Signature of prescribed officer. (Rule - 163) FORM D Warrant for use when prisoner is to be delivered into force custody To The Superintendent of the (a)... ............................. ..Prison. Whereas (No... ............ .Rank......Name... ................... ...) (Late) of the... ............................................... ..unit is confined in the (a)... ............... .prison unde r a warrant issued by (b)... in pursuance of sentence of (c)... .................................... .passed upon him by a (d).......................... ... ...Security Force Court held at... .............................. ..on... ................... ........... ...,and whereas (e)... ................................................... ... has, in exercise of the BSF RULES 196 APPENDIX - X powers conferred upon him by the Border Security Force Act passed the following order regarding the aforesaid sentence; that is to say (f) ... This is to require and authorise you to deliver forthwith the said (name) in your custody to the offic er or subordinate officer bringing this warrant. Given under my hand at... ........................................ ..this the... ............... ..day of... .......................... ..20... Signature (g) BSF RULES 197 (a) Enter name of civil prison. (b) Enter name or designation of officer who signed original warrant. (c) Enter original sentence (if this was reduced by the confirming officer or other superior authority the sentence should be entered th us:- 2years rigorous imprisonment reduced by confirming officer to 1 year. (d) General, Petty or Summary. (e) Name and designation of authority issuing the order. (f) Order to be set out in full. (g) Signature of prescribed officer. BSF RULES 197 APPENDIX - XI (Rule - 164 (1)) FORM A Warrant committing to civil prison custody a person sentenced to death To, The Superintendent of the (a)... ............................... .Prison. Whereas a (b)... ............................. ...Security Force Court held at. .. ......................on the... ............. .day of... .............. ..20... , (No... ......................Rank... ..Name... ........................................ ..) of the... ................. ..unit was convicted of... (Offence to be briefl y stated): And whereas the said (b)... .......... ...Security Force Court on the... ............... ...day of... ................... ...20 , passed sentence of death by being hanged, on the said (NAME) : - and the said sentence of death h as been confirmed by the Central Government. This is to require and authorise you to receive the said (Name)... ............................... ..into your custody and to carry out the sentence of death on... Given under my hand at... ....................................... ..this the... ........................ . day of ... 20... Signature (c) (a) Enter name of civil prison. (b) General. (c) Signature of the Director General. BSF RULES 199 APPENDIX - XI (Rule - 164 (2)) FORM B Warrant to obtain person sentenced to death from civil custody in order to carry out such sentence To The Superintendent of the (a)... .............. .Prison. Whereas No................ ...Rank... ...... .Name... (late) of the... ........... ...unit having been sentenced to suffer death on the... ............ ...day of... ............. .20 , by a (b)... .......... ...Security Force Court held at... .......... .... ...is held in the said prison under a warrant by (c) And whereas, the said sentences having been duly confirmed by (d)... .................... ..as by Law required an order to carryout the said sentence has been issued to me (e)... (Name & Rank) ... This is to require and authorise you to deliver forthwith the said (Name)... .............................. ...to the Officer/Subordinate Officer/Under -Officer bringing this warrant. Given under my hand at... ........................ ................. ..this day of... ........................... .20... Signature (f) (a) Enter name of civil prison. (b) General. (c) Enter name or designation of officer who signed original warrant. (d) Name and description of confirming authority. (e) Name and designation of the officer to whom the order is issued. (f) Signature of the officer by whom the order is issued. BSF RULES 200 APPENDIX - XI (Rule - 164 (2)) FORM C Warrant to carry out sentence of death To The Deputy Inspector -General, ... Whereas a (a)... ....................... .Security Force Court held at... .................on the... ................. .day of... ......................, 20... (No... ................ ..Rank... ............ ..Name... ................................. ...) of the... ........................................ ...Battalion/Unit was convicted of... ............................. .(Offence to be briefly stated). And whereas the said (a)... ................................. ..Security Force Court on the... ................ ..day of... ............. ..,20...... , passed sentence of death by being shot on the said (Name)... and the sentence of death has been confirmed by the Central Government. This is to require and authorise you to carryout the sentence of death on... Given under my hand at... .......................................... ..this the... ............. ..day of............................... .20... Signature (b) (a) General. (b) Signature of the Director -General. BSF RULES 201 APPENDIX - XII (Rule - 165) FORM A Warrant for use when the sentence of a person under sentence of death and committed to custody in a civil prison is commuted to a sentence of imprisonment for life. To The Superintendent of the (a)... ....................... ... Prison. Whereas (No... ................... .Rank... ...Name... ........................ .) (late) of the................................................. ..Unit is held in the (a)...... ...................................... ...Prison under a warrant issued by (b)... ............................... ..in pursuance of a sentence of death passed upon him by (c)... ........................... .Security Force Court held at... ........... ..on. .. ............ ..and whereas (d)... ........... ..has, in exercise of the powers conferred upon him by the Border Security Force Act, passed the following order regarding the aforesaid sentence: that is to say (e)... This is to require and authorise you to keep the said (Name... ................................ .) in your custody together with this warrant in the said prison as by law is required until he shall be delivered over by you with the said warrant to the proper authority and custody for the purpose of his undergoing the punishment of imprisonment for life, under the said order. And this is further to require and authorise you to return to me the original warrant of commitment in lieu where of this warrant is issued. Thi s period of such imprisonment for life will reckon from the (f)... Given under my hand at... ............ .this the... ......... ..day of............................. ...20... Signature (g) (a) Enter name of civil prison. (b) Enter name or designation of the officer who signed original warrant. BSF RULES 202 (c) General. (d) Name and designation of authority commuting the sentence. (e) Order to be set out in full. (f) Enter date on which original sentence was signed. (g) Signature of Commandant. BSF RULES 203 APPENDIX - XII (Rule - 165) FORM B Warrant for use when the sentence of a person under sentence of death and committed to custody in a civil prison is commuted to a sentence of imprisonment to be served in the same prison . To The Superintendent of the (a)... .................. ........... .Prison. Whereas (No... .............. ...Rank... ........ ..Name... (late) of the... ................... ...Unit is held in the (a) Prison under a warrant issued by (b)... .................. .in pursuance of a sentence of death passed upon him by a (c)... ......................... ...Security Force Court held at... ...................on... ................................ .. and whereas (d)... ......... .has in exercise of the powers conferred upon h im by the Border Security Force Act, passed the following order regarding the aforesaid sentence, that is to say : - (e)... This is to require and authorise you to keep the said (Name)... ................................................. .in you r custody together with this warrant, and there to carry into execution the punishment of imprisonment under the said order according to law. And this is further to require and authorise you to return to me the original warrant of commitment in lie u whereof this warrant is issued. This period of such imprisonment will reckon from the (f)... Given under my hand at... ................ .this the... ...... ..day of......................... ...20... Signature (g) (a) Enter name of civil prison. BSF RULES 204 (b) Enter name or designation of officer who signed original warrant. (c) General. (d) Name and designation of authority commuting the sentence. (e) Order to be set out in full. (f) Enter date on which original sentence was signed. (g) Signature of Commandant. BSF RULES 205 APPENDIX - XII (Rule - 165) FORM C Warrant for use when a person who, after having been sentenced to death has been committed to custody in a civil prison is to be delivered into Force custody for a purpose other than carrying out the sentence of death. To The Superintendent of the (a)... ....................... ...Prison. Whereas (No... .............. .Rank... .Name... ........................... ...) (late) of the... ............ ..Unit is held in the (a)... .............. ...Prison under a warrant issued by (b)... ............. ...... ..in pursuance to a sentence of death passed upon him by a (c)... ............ ...Security Force Court held at... ................. ...on... ............ ...and whereas (d)... ............ .has in exercise of powers conferred upon by the Border S ecurity Force Act passed the following order regarding the aforesaid sentence; that is to say (e)... This is to require and authorise you to forthwith deliver the said (name)... ............................... ...to the officer/subordinate officer or under officer bringing this warrant. Given under my hand at... ....................................... ..this the... ...................... .day of... .... ......................... .20... Signature (f) (a) Enter name of civil prison. (b) Enter name or designation of officer who signed original warrant. (c) General. (d) Name and designation of authority issuing order. (e) Order to be set out in full. (f) Signature of Commandant. BSF RULES 206 APPENDIX - XII (Rule - 165) FORM D Warrant for used when a prisoner is pardoned or his trial set aside, or when the whole sentence or the unexpired portion thereof is remitted (Section 125 ). To The Superintendent of the (a)... ............................. .Prison. Whereas (No... ....................Rank... .........Name...
the (a)... ............................. .Prison. Whereas (No... ....................Rank... .........Name... ....................... ...) of the... ..................Unit is confined in the (a)... ......... .Prison under a warrant issued by (b)... .................. ..in pursuance of a sentence of (c)... ................ ..passed upon him by a (d)... ............... .Security Force Court held at... ......... .on... .and whereas (e)... ......... ... .has, in exercise of the powers conferred upon him by the Border Security Force Act, passed the following order regarding the aforesaid sentence, that is to say (f)... This is to require and authorise you to forthwith discharge the said (Na me)... ................................... .from your custody unless he is liable to be detained for some other cause, and for your so discharging him this shall be your sufficient warrant. Given under my hand at... ........... ...this the... .......... ...day of... ....................... .20... Signature (g) (a) Enter name of civil prison. (b) Enter name or designation of officer who signed original warrant. BSF RULES 207 (c) Enter original sentence (if this was reduced by the confirming officer or other superior authority the sentence should be entered thus : (2 years rigorous imprisonment reduced by confirming officer to 1 year). (d) General, petty and (or) Summary. (e) Name and designation of authority pardoning prisoner, mitigating sentence or setting aside trial. (f) Order to be set aside in full. (g) Signature of prescribed officer. BSF RULES 208 APPENDIX - XIII (Rule 174 (1) (a) (iii)) REPORT ON UNNATURAL DEATH 1. Place of death, or the place where dead body was found (give details). 2. Date and time at which information of death was received. 3. Name and description of two or more persons who iden tify the dead body. 4. Name and particulars of the deceased and his status. 5. Condition of clothes worn by the deceased. Note :- In case, examination by Doctor is awaited, above details should be collected without removing the clothes etc. of the deceased, the other details should be completed after the Doctors examination. 6. Condition of limbs, eyes and mouth. 7. Expression of face. 8. Marks of struggle on the dead body if any, injuries and abrasions, should be recorded showing their size and location. Note :- Depth of injury should be recorded but injuries should not be touched. If examination by Doctor is awaited the above information should be recorded after his examination. 9. Whether blood is fluid or coagulated. The place from which it came out and its quantity. 10. By which means, weapon or instrument, the injury or marks of struggle appear to have been caused. 11. Was any rope tied around the neck or is there any mark of it being tied by anything. BSF RULES 209 12. Was the rope or any other thing used to strangle or hang dead body, was, it strong enough to sustain the weight and whether its other end was tied to anything. 13. Was any external article like grass etc. sticking to hairs or held in his hand or sticking to any other part of the body. 14. Is the dead body that of a strong and well built man or is it that of a weak or old man. 15. Is the dead body strong or weak or is it in decomposed state. 16. Length of the dead body from head to feet. 17. Identification marks and location and appearance of the wounds. 18. Apparent cause of death. 19. Is there any rumour or other circumstances showing that it is a case of suicide. Details of articles found on the dead body or lying near it . 20. Those found on the dead body (A slip will be affixed on each article which will be stamped). 21. Those found lying near the dead body (a slip duly stamped will be affixed on each article). Description of the seal BSF RULES 210 22. Map of the place where the dead body was found. Brief history of the case. Signature of two or more respectable witnesses of the locality in whose presence investigation was carried out. Place... Signature of the officer Date... Investigating the case Name... Rank... BSF RULES 211 APPENDIX - XIV (Rule 180) PART -I FORM -I Form for use at summary trials of or below the rank of Subordinate Officer (Under Section 55 of the Act). Accused... Rank & Name... Unit... When the authority dealing summarily with the case decides (with the written consent of the accu sed) to dispense with the attendance of witnesses: Question to accused : - 1. Have you received a copy of the charge sheet and record or abstract of evidence? Answer: 2. Have you had sufficient time to prepare your defence? Answer: 3. The charge sheet is read. Are you guilty or not guilty of the charge (s) against you which you have heard/read? Answer: 4. Do you wish to make a statement? Answer: If the accused desires to make a statement he should do so now. If at the conclusion of the hearing the authority dealing summarily with the case considers that the charge should not be dismissed, he is to examine the accuseds record of service or conduct sheet. If the authority dealing summarily with the BSF RULES 212 case proposes to award a punishment other than a reprimand, severe reprimand or penal deductions, in the case of a subordinate officer, he shall put the following question to the accused. 5. Do you elect to be tried by Security Force Court or will you accept my award? Answer: Finding... Award... Station... Date... Note : - Oral statement of the accused made in answer to question 4 will not be recorded. If the accused has submitted a written statement such statement is only to be forwarded with or attached to this form when a copy of the Record or Abstract of evidence is also required to be so forwarded or attached. This form will be kept with Confidential Character Roll of the Subordinate Officer. If the accused pleads Not Guilty to the charge, then after question No. 3 record the following : - The Record of Evidence/AOE is read within the hearing of the accused. BSF RULES 213 APPENDIX - XIV (Rule180) Part -I FORM - II Form for use at summary trials of or below the rank of Subordinate Officer (Under Section 55 of the Act). Accused... Rank and Name... Unit... When the authority dealing summarily with the case does not decide to dispense with the attendance of witnesses or when the accused requires their attendance. Question to accused : - 1. Have you received a copy of the charge sheet and the record or abstrac t of evidence? Answer : 2. Have you had sufficient time to prepare your defence? Answer : 3. Are you guilty or not guilty of the charge against you which you have heard/read? The witnesses give their evidence, accused being permitted to cross -examine. 4. Do you wish to make a statement? Answer : 5. Do you desire to call any witness? Answer : The accused makes a statement and his witnesses give evidence. If at the conclusion of the hearing, the authority dealing summarily with the case considers that the charge should not be dismissed with, he is to examine the accuseds record of service or conduct sheet. BSF RULES 214 If the aut hority dealing summarily with the case proposes to award a punishment other than a reprimand, severe reprimand or penal deduction, in the case of subordinate officer, he shall put the following question to the accused : - 6. Do you elect to be trie d by Security Force Court or will you accept my award ? Answer : Finding... Award... Station... Date... Note : - Oral statement of the accused made in answer to question 4 will not be recorded. If the accused has submitted a written statement, such statement is only to be forwarded with or attached to this form when a copy of the Record or Abstract of evidence is also required to be so forwarded or attached. This Form will also required to be so forwarded or attached. This form will be kept with Confidential Character Roll of the Subordinate Officer. [No. F.14/5/58 -BS.I] B. VENKATARAMAN, Jt. Secy. BSF RULES 215 MINISTRY OF HOME AFFAIRS CORRIGENDUM New Delhi, the Ist July 1969 S.O. 2710. - Corrige ndum to Minsitry of Home Affairs (Border Security (1) Section I Notification S.O. 2336 dated 9th June 1969 published in the Gazette of India Extraordinary Part IISection 3 -Sub-Section (ii) on 13th June, 1969. In rule 13(2) 4th line. For the word consent substitute consents. In rule 15(1) (ii) Ist Line. Delete s from the word exist. In rule 18(2) Ist line. Add shall after medical board. In rule 19(2) 2nd line. For the word experient read wxpedient. In rule 19(3) (c) Ist line. Add for a specified period after undertaken serve. In rule 20(3) Proviso, 2nd line. read itnesses as witnesses. In rule 21(2) Ist line. Read No counset of as No counsel or. In rule 25(3) 2nd line. Add the I nspector General, the Deputy Inspector General or after service in the Force. In rule 29 3rd line. Read office as officer. In rule 43 3rd line. Read set at as set out. In rule 48 (6) (a) 2nd line. Read office as officer. In rule 49 (2) (a) (i). Delete or after thereof. In rule 81 (3) Read sub clause (c) as sub rule (4). In rule 82 Heading. Read Change or plea as change of plea. In rule 82 3rd line. read guilty under the as guilty under rule. In rule 101(3) 4th line. Add any after summary is in. In rule 106(6) Ist line. Read on a plea as or a plea. In rule 106(6) 2nd line. Read rule 79 as rule 77. In rule 131(4) last line. Read proceeding as proceedings. In rule 138 H eading. Read arrangement as Arraignment. BSF RULES 216 In rule 140(2) 3rd line. Read Charge if required as Change is required. In rule 165 2nd line. Read chcange as change. In rule 170 3rd line. Read officers of both as officers or both. In Appendix I Col. 5. Read Hair as Heir. In Appendix I Col. 9. Read name if the party as name of the party. In Appendix I Part II Col. 1. 2nd line. Read period of which as period for which. In Appendix II Col. 4. Delete of after date. In appendix IV Instructions Col. 5 Read accordande and accordance. In Appendix XIII Col. 10. 2nd line. Read marks on as marks of . In Appendix XIV Col. 5, 7th line. Delete with after not to be dismisss. [No. F. 31/11/69 -BS.1.] G. BALAKRISHNAN. Under Secy. BSF RULES 217 CRIMINAL COURTS AND BORDER SECURITY FORCE COURT (ADJUSTMENT OF JURISDICTION) RULES 1969 SO 3477 . In exercise of the powers conferred by clause (k) of Sub - Section (2) of section 141 of the Border Security Force Act, 1968 (47 of 1968), the Central Government hereby makes the following rules n amely : - 1. Short title .- These rules may be called the Criminal Courts and Border Security Force Court (Adjustment of Jurisdiction) Rules, 1969. 2. Definitions. - In these rules, unless the context otherwise requires. (i) Act means the Border Security Force Act, 1968 (47 of 1968); (ii) Commandant, in relation to a person subject to the Act, means the officer Commanding the unit or detachment to which such person belongs or, is attached; (iii) Competent authority me ans the Director - General, Inspector -General, or a Dy. InspectorGeneral of the Border Security Force; (iv) Words and expressions used in these rules and not defined but defined in the Act, shall have the meaning respectively assigned to them in the Act. 3. Trial of person subject to the Act - Where a person subject to the Act, is brought before a Magistrate and charged with an offence for which he is liable to be tried by a Border Security Force Court, such magistrate shall not proceed to try such person or to inquire with a view to his Commitment for trial by the Court of Sessions or the High Court for any offence triable by such Court, unless, :- BSF RULES (a) he is of opinion, for reasons to be recorded in
, :- BSF RULES (a) he is of opinion, for reasons to be recorded in writing that he should so proceed without being moved thereto by the competent authority; or (b) he is moved thereto by such authority. 218 4. Notice by Magistrate .- Before proceeding under clause (a) of rule 3, the Magistrate shall give written notice to the Commandant of the accused and until the expiry of a period of :- (i) Three weeks, in the case of a notice given to a Commandant in command of a unit or detachment located in any of the following areas, that is to say, : - (a) State of Nagaland; (b) Mizo hill, Garo Hill, Khasi and Jaintia Hill and North Cachar Hill, Districts of Assam, or (ii) ten days in the case of a notice given to any other Commandant in command of a unit or detachment located elsewhere in India, from the date of the service of such notice, he shall not , - (a) convict or acquit the accused under section 243 or section 245 or section 247 or section 248 of the code of Criminal Procedure, 1898 (5 of 1898) or hear him in his defence under section 244 of the said code; or (b) frame in writing a charge against t he accused under section 254 of the said code; or (c) make an order committing the accused for trial by the High Court or the Court of Sessions under section 213 of the said Code; or (d) transfer the case for inquiry or trial under section 192 of the sa id code. 5. Procedure on notice to the Magistrate - Where within the period mentioned in rule 4 above, or at any time thereafter before the Magistrate has done any act or made any order referred BSF RULES 219 to in that rule, the Commandant of the accused or the competent authority, as the case may be, gives notice to the Magistrate that in the opinion of such authority, the accused should be tried by a Border Security Force Court, the Magistrate shall stay proceedings and if the accused is in his power or under his control, shall deliver him with the statement prescribed in sub - section (1) of section 549 of the code of Criminal Procedure 1898 (5 of 1898) to the authority specified in the said sub -section . 6. Procedure on notice to Magistrate before Commencement of tria l - Where a Magistrate has been moved by the competent authority under clause (b) of rule 3, and the Commandant of the accused or the competent authority, as the case may be, subsequently gives notice to such Magistrate that in the opinion of such authority the accused should be tried by a Border Security Force Court, such Magistrate, if he has not before receiving such notice, done any act or made any order referred to in rule 4, shall stay proceedings, and, if the accused is in his power or under his control, shall in the like manner deliver him, with the statement prescribed in sub -section (1) of section 549 of the Code of Criminal Procedure, 1898 (5 of 1898) to th e authority specified in the said sub -section. 7. Intimation regarding trial of accused - (1) When an accused has been delivered by the Magistrate under rule 5 or 6, the Commandant of the accused or the competent authority, as the case may be, shal l, as soon as may be, inform the Magistrate whether the accused has been tried by a Border Security Force Court or other effectual proceedings has been taken or ordered to be taken against him. (2) When the Magistrate has been informed under su b-rule (1) that the accused has not been tried or other effectual proceedings have not been taken or not ordered to be taken against him the Magistrate shall report the circumstances to the State Government, which may, in consultation with the Central Government, take appropriate steps to ensure that the accused person is dealt with in accordance with law. BSF RULES 220 8. Reference to Central Government for determination of Court of trial .- Not withstanding anything contained in the foregoing rule where it comes to the notice of a Magistrate that a person subject to the Act committed an offence, proceedings in respect of which ought to be instituted before him and that the presence of such person cannot be procured except thro ugh the Commandant or the competent authority the Magistrate may, by a written notice, require the Commandant of such person either to deliver such person to a Magistrate to be named in the said notice for being proceeded against according to law, or t o stay the proceedings against such person before the Border Security Force Court, if since instituted, and to make a reference to the Central Government for determination as to the Court before which proceedings should be instituted. 9. Delivery of accused to the Magistrate. - Where a person subject to the Act has committed an offence which, in the opinion of competent authority ought to be tried by a Magistrate in accordance with the civil law in force or where the Central Government on a referen ce mentioned in rule 8, decides that the proceedings against such person should be instituted before a Magistrate, the Commandant of such person shall, after giving a written notice to the Magistrate concerned deliver such person under proper escort to tha t Magistrate. BSF RULES 221 BSF (DEDUCTIONS FROM PAY AND ALLOWANCES) RULES, 1978 SO 76 (E) - In exercise of the powers conferred by subsections (1) and (2) of section 141 of the Border Security Force Act, 1968 (47 of1968), the Central Government hereby makes the following rules, namely : - 1. Short title, application and commencement. - (1) These rules may be called the Border Security Force (Deductions from Pay and Allowances) Rules, 1978. (2) These rules shall apply to all persons subject to the Act. (3) They shall come into force on the date of their publication in the official Gazet te. 2. Definitions .- In these rules, unless the context otherwise requires. (a) Act means the Border Security Force; Act, 1968 (47 of 1968); (b) Words and expressions used herein and not defined in these rules but defined in the Act shall have the meanings assigned to them in the Act. 3. Deductions from pay and allowances of Officers. - The following deductions may be made from the pay and allowances of an officer, that is to say , - (a) all pay and allowances due to an officer for every day he absents himself without leave, unless a satisfactory explanation has been given and accepted by the Inspector - General under whom he is for the ti me being serving; (b) any sum required to make good the pay of any BSF RULES 222 person subject to this Act which the officer has unlawfully retained or unlawfully refused to pay; (c) any sum required to be paid as fine imposed by a criminal court or a Security Force Court; (d) any sum required to make good any loss, damage or destruction of public property or property belonging to the Force which, after due investigation, appears to the Inspector General under whom the officer is for time being serving, to have been occasioned by wrongful act or negligence on the part of the officer; e) all pay and allowances forfeited by an order of the Central Government if the Officer is found by a court -of inquiry Constituted by the Director -General, Border Security Force in this behalf, to have deserted to the enemy, or while in enemys hands, to have served with or under the orders of enemy, or in any manner to have aided the e nemy, or to have allowed himself to be taken prisoner by the enemy, through want of due precaution or through disobedience of orders or wilful neglect of duty or having been taken prisoner by the enemy, to have failed to rejoin his service when it was possible to do so; (f) any sum required by an order of the Central Government to be paid for the maintenance of his wife or his legitimate or illegitimate child or step -child or towards the cost of any relief given by the said Government to th e said wife or child. 4. Deductions from the pay and allowances of persons other than officers. - Subject to the provisions of rule 6, the following deductions may be made from the pay and allowances of persons subject to the Act, other than an of ficer, that is to say, - (a) all pay and allowances for every day of absence either on desertions or without leave, or as a prisoner of war, and for every day of imprisonment awarded by a criminal court, a Security Force Court or an officer exercising authority under Sec 53 of the Act; BSF RULES 223 (b) all pay and allowances for every day between the date of his recovery from the enemy and his dismissal from the Service in consequence of his conduct when being taken pris oner by, or while in the hands of the enemy; (c) any sum required to make good the pay of any person subject to this Act which he has unlawfully retained or unlawfully refused to pay; (d) any sum required to make good such compensation for any expenses, loss, damage or destruction caused by him to the Central Government or to any building or property or any private fund of the Force as may be awarded by his Commandant; (e) any sum required to be paid as fine imposed by a Criminal Court, a Securit y Force Court or an officer exercising authority under Section 53 of the Act; (f) any sum required by an order of the Central Government to be paid for maintenance of his wife or his legitimate or illegitimate child or step -child or towards the cost of a ny relief given by the said Government to the said wife or child. 5. Computation of time of absence or imprisonment for the purpose of clause (a) of Rule 4 .- (1) No person shall be treated as absent or under imprisonment for a day unless the absenc e or imprisonment has lasted, whether wholly in one day or partly in one day and partly in another, for six consecutive hours or upwards. (2) any absence or imprisonment for less than a day may be reckoned as absence or imprisonment for a day if such absence or imprisonment prevented the absentee from fulfilling any duty as a member of the Force which was thereby thrown upon some other member. 6. Limit of certain deductions .- The total deductions from the Pay and allowance of a person made under clauses (c) to (f) BSF RULES 224 of rule 4 shall not, except where he is sentenced to dismissal, exceed in any one month, one half of his pay and allowance for that month. 7. Deductions from public money due to a person .- Any sum authorised by these rules to be deducted from the pay and allowances of any person may, without prejudice to any other mode of recovering the same, be deducted from any public money due to him other than a pension. 8. Pay and allowances of pris oner of war during the inquiry into his conduct .- Whether the conduct of any person subject to the Act when being taken prisoner by, or while in the hands of the enemy, is to be inquired into under the Act or any other law, the Central Government or th e Director -General or any officer authorised by the Director -General may order that the whole or any part of the pay and allowances of such person shall be withheld pending the result of such inquiry. 9. Provision for dependents of prisoner of war from remitted deductions .- In the case of persons subject to the Act, being prisoner of war, whose pay and allowances have been forfeited under clause (e) of rule 3 or clause (a) of rule 4, but in respect of whom a remission has been made under rule 13 it shall be lawful for proper provision to be made by the Central Government out of such pay and allowances for any dependents of such persons, and any such remission shall, in that case, be deemed to apply only to the balance remaining thereafter of such pay and allowances. 10. Provision for dependents of prisoner of war from his pay and allowances .- It shall be lawful for proper provision to be made by the Central Government (or by the Director General When so authorised by the Central Government) fo r any dependents of any person subject to the Act who is a prisoner of war or is missing, out of his pay and allowances. 11. Period during which a person is deemed to be prisoner of war. - For the purposes of rule 9 and 10, a person shall be deemed to c ontinue to be a prisoner of war until the conclusion of BSF RULES 225 any inquiry into his conduct referred to in rule 8, and if he is dismissed from Service, in consequence of such conduct, until the date of such dismissal. 12. Authority competent to order deductions .- The following shall be the authorities competent to order deductions from pay and allowances under these rules namely: - (1) Commandants, in the case of subordinate officers and enrolled persons; * (2) Director General, in the case of officers. 13. Remission of deductions .- Any authority superior to the one awarding any deductions under these rules shall be competent to remit the whole or part of the said deductions. 14. Powers to be exercised by a superior officer or authority. - Any power conferred by the provisions of th ese rules on an officer may be exercised by an officer or authority superior in command to the first mentioned officer. 15. Transitory provisions. - Any rule or order applicable to the members of the Force on the date of commencement of these rules shal l, unless it is repugnant to these rules, continue to apply unless and until it is abrogated or modified by the Central Government or any other competent authority. (F No. 1/20
rogated or modified by the Central Government or any other competent authority. (F No. 1/20/77 -CLO/BSF) *Subs by SO 3190 Dated 2nd Nov 1978 BSF RULES 226 CRIMINAL PROCEDURE CODE, 1898 MINISTRY OF HOME AFFAIRS (Border Security (1) Section) ORDER New Delhi, the 22nd July 1969 S. O. 3028 -Whereas the Central Government is of opinion that for the purposes specified in clause (i) and clause (ii) of Sub - Section (l) of section 139 of the Border Security Force Act, 1968 (47 of 1968) , - (a) an officer of the rank corresponding to that of th e lowest rank of members of the Force is empowered under the Code of Criminal Procedure, 1898 (5 of 1898), to exercise and discharge the powers and duties under sections 47, 48, 49, 51, 53, 54, 149, 150, 151 and 152 of the of the said Code; (b) an offi cer of a rank corresponding to or lower than that of officers and subordinate officers of the Force is empowered under the said Code to exercise and discharge the powers and duties under sections 55, 102, 103 and 131 thereof; Now, therefore, in exercise of the powers conferred by sub-section (l) of section 139 of the Border Security Force Act, 1968 (47 of 1968), the Central Government hereby directs that for the purposes referred to in clause (i) and clause (ii) of that subsection, - (a) any me mber of the Force may within the local limits of the areas specified in the Schedule hereto annexed exercise and discharge the powers and duties under sections 47, 48, 49, 51, 53, 54, 149, 150, 151 and 152 of the Code of Criminal Procedure, 1898 (5 of 1898); (b) any officer or subordinate officer of the Force BSF RULES may within the local limits of the areas specified in the said schedule, exercise and discharge the power and duties under sections 55, 102, 103 and 131 of the said code. The Schedule 227 (1) The whole of the area comprised in the Union Territories of Manipur and Tripura. (2) So much of the area comprised within a belt of eighty kilometers in the State of Gujarat, fifty kilometres in the State of Rajasthan and fifteen kilometres in the State of Punjab, West Bengal and Assam, running along the borders of India. (No. F 31 -8-69 BSF - I) B. VENKATARAMAN, Jt. Secy. BSF RULE 228 NOTIFICATION New Delhi, the 25th February, 1997 S.O. 592 - In exercise of the powers conferred by Section 74 of the Border Security Force Act, 1968 (47 of 1968), the Central Government hereby declares the post mentioned in column 2 of the Table below as equivalent to the post mentioned in the corresponding e ntry in column 1 of the said Table, namely : - TABLE Post and rank in Post and rank in the Border the police Security Force 1 2 Superintendent of Police Deputy Commandant [No. 1/13/96 -CLO/BSF] S K SWAMI, Dy. Secy. BSF RULE 229 GAZETTE OF INDIA MINISTRY OF HOME AFFAIRS [PERSONNEL -I SECTION] ORDER NEW DELHI, the 25 th June 1973 S.O. 353 (E) -Whereas the Central Government is of opinion that for the purposes specified in clause (i) and clause (ii) of sub section (1) of Section 139 of the Border Security Force Act, 1968 (47 of 1968). (a) an officer of the rank corresponding to that of the lowest of members of the Force is empowered under the Code of Criminal Procedure, 1898 (5 of 1898), to exercise the powers and discharge the duties under sections 47, 48, 49, 51, 53, 54, 149, 150, 151 and 152 of the said Code; (b) an officer of a rank corresponding to or lower than that of officers and subordinate officers of the Force is empowered under the said Code to exercise the powers and discharge the duties under sections 55, 102, 103 and 131 thereof; Now therefore, in exercise of the powers conferred by sub section (1) of section 139 of the Border Security Force Act 1968, the Central Government hereby directs that for the purposes referred to in clause (i) and clause (ii) of that sub -section : - (a) any member of the Force may, within the local limits of the areas specified in the Schedule hereto annexed, exercise the powers and discharge the duties under sections 47, 48, 49, 51, 53, 54, 149, 150, 151 and 152 of the Code of Criminal Procedure, 1898 [(5) of 1 898]; (b) any officer or subordinate officer of the Force may, within the local limits of the areas specified in the said schedule, exercise the powers and discharge the BSF RULES 230 duties under sections 55, 102, 103 and 131 of the said Code. The Schedule The whole of the area comprised in the States of Meghalaya and Nagaland and in the Union Territory of Mizoram. (NO.F 4(13)/73 -CLO/BSF/PERS -I C CG SOMIAH, Jt. Secy. BSF RULES 231 COMPARATIVE CHART OF RELEVANT PROVISIONS RELATING TO GRANT OF POWERS TO BSF PERSONNEL UNDER CrPC 1898 (OLD ACT) AND CrPC 1973 (NEW ACT) S.No. Powers Section under Section under CrPC 1898 CrPC 1973 (Qld Act) (New Act) 1. Relating to arrest S 54 S 41 (1) S 150 S 150 S 151 S 151 S 55 S 41 (2) 2. Relating to search S 47 S 47 (1) seizure S 48 S 47 (2) and S 49 S 47 (3) S 51 S 51 (1) S 53 S 52 S 102 S 100 and 103 3. Other powers S 131 S 131 S 149 S 149 S 152 S 152 BSF ACT 232 CUSTOMS ACT, 1962 GOVERNMENT OF INDIA MINISTRY OF FINANCE (Department of Revenue & Insurance) New Delhi, the 20th Dec 69 NOTIFICATION [CUSTOMS] S.O. No. 4941. In exercise of the powers conferred by section 6 of the Customs Act, 1962 (52 of 1962), the Central Government hereby entrusts to the Officers of the Border Security Force posted in the States of Jammu & Kashmir, Punjab, Rajastha n, Gujarat, West Bengal and Assam and the Union Territory of Tripura, mentioned in Column 2 of the Table below, the functions of an officer of Customs specified in the corresponding entry in Column 3 of the said Table and directs that each such officer of the Border Security Force shall exercise the functions of an officer of Customs within the local limits of his jurisdictions. Sl. Designation of Officer Functions under the No. Provisions of the Customs Act,1962 1. All C ommandants, Deputy Functions under sections 100 Commandants and Asstt. to 104 (both inclusive), Commandants 106,107,109 and 110 and also under sections 105 & 108 in places where no officer of customs of the rank of Superintendent of Cu stoms and Central Excise or above is stationed. 2. All Subedar Majors, Functions under Sections 100 Subedars and Sub - to 104 (both inclusive), Inspectors. 106,107,109 & 110. 3. All Head Constables and Functions under Se ctions Naiks 100,102,106 & 110. Sd/- (P. K. KAPOOR) Under Secretary to the Govt. of India BSF RULES 233 PASSPORT (ENTRY INTO INDIA) ACT, 1920 Gazette of India, dated 22nd Sep 1969 Ministry of Home Affairs ORDER S.O. 3996 - Whereas the Central Government is of opinion that for the purposes specified in clause (i) and clause(ii) of sub -section (1) of section 139 of the Border Security Force Act 1968 (47 of 1968), an officer of a rank corresponding to or lower than that of officers and subordinate officers of the Force is empowered to exercise the powers and discharge the duties under section 4 of the passport (Entry into India) Act, 1920 (34 of 1920). Now, therefore, in exercise of the powers conferred by sub-section (1) of section 139 of the Border Security Force Act, 1968 (47 of 1968), the Central Government hereby directs that for the purposes referred to in clause (i) and clause (ii) of that sub - section any officer or subordinate officer of the Force May, within the local limits of the areas specified in the schedule annexed hereto exercise and discharge the powers and duties under section 4 of the Passport (Entry into India) Act, 1920 (34 of 1920). Schedule 1. The whole of the area comprised in the Union territories of Manipur and Tripura and the state of Jammu and Kashmir. 2. So much of the area comprised within the belt of eighty kilometres in the state of Gujrat, fifty kilometres in the state of Rajasthan, and fifteen kilometres in the states of Punjab, West Bengal and Assam, running along the borders of India. No. F 31/7/69. BS.I G. S. GREWAL, Dy Secy. BSF RULES 234 PASSPORT ACT, 1967 MINISTRY OF HOME AFFAIRS GAZETTE NOTIFICATION ORDER New Delhi, the 29th August 73 S.O. 449 (E) - Whereas the Central Government is of opinion that for the purposes specified in clause (i) and clause (ii) of sub -section (1) of section 139 of the Border Security Force Act, 1968 (47 of 1968), an officer of a rank corresponding to or lower than that of officers, and subo rdinate officers of the Force is empowered to exercise the powers and discharge the duties under section 13 of the Passport Act, 1967 (15 of 1967) : Now, therefore, in exercise of the powers conferred by sub-section (1) of section 139 of the Border Security Force Act, 1968 (47 of 1968), the Central Government hereby directs that for the purposes referred to in clause (i) and clause (ii) of that subsection, any officer or subordinate officer of the Force may, within the local limits of the areas specified in the schedule annexed hereto, exercise the powers and discharge the duties under section 13 of the Passport Act, 1967 (15 of 1967). Schedule 1. The whole of the area comprise in the Union territories of Manipur, Tripura, Mizoram, Nagalan d, Meghalaya and the state of Jammu and Kashmir. 2. So much of the area comprised within the belt of eighty kilometers in the state of Gujrat, fifty kilometres in the state of Rajasthan, and fifteen kilometers in the state of Punjab, West Bengal and As sam, running along the borders of India. No. F 4/5/71 -CLO/BSF C. G. SOMIAH, Jt. Secy (P) BSF RULES 235 POWERS UNDER NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 MINISTRY OF FINANCE
PSYCHOTROPIC SUBSTANCES ACT, 1985 MINISTRY OF FINANCE DEPARTMENT OF REVENUE NOTIFICATION New Delhi, the 7th Sept, 2010 S.O. 2184(E) - In exercise of the powers conferred by subsection(1) of section 42 and section 67 of the Narcotic Drugs and Psychotropic Subs tances Act, 1985 (61 of 1985), the Central Government hereby empowers the officers of and above the rank of Sub -Inspector of the Border Security Force to exercise the powers and perform the duties specified in Section 42 within the areas of their respe ctive jurisdiction and also authorises the said officers to exercise the powers conferred upon them under Section 67. [F.NO. 11012/2/2010 -NC-II] SATYA NARAYAN DASH, UNDER SECY BSF RULES 236 MINISTRY OF HOME AFFAIRS (IS-II DIVISION) NOTIFICATION New Delhi, the 11th November, 2010 G.S.R. 904(E) - In exercise of the powers conferred by sub - section (1) of Section 43 of the Arms Act, 1959 (54 of 1959), and in supersession of the notifications of the government of India in the Ministry of Home Affairs published in the Gazette of India, Extraordinary, Part II, Section 3, Sub -Section (i) vide number G.S.R 77(E), dated the 15 th Feb, 2010 and number G.S.R. 378(E), dated the 5th May, 2010, except as respects things done or omitted to be done before such supersession, the Central Government hereby directs that the officer of the rank of Assistant Commandant and above and the subordinate officers of the rank of Sub -Inspector an d above in the Central Para Military Forces shall exercise the powers conferred on the Central Government under Section 24 of the Arms Act, 1959(54 of 1959) in all the areas where they are deployed or called upon to perform any duty. 2. In this notification, Central Para Military Forces means (i) the Central Reserve Police Force constituted under section 3 of the Central Reserve Police Force Act, 1949 (66 of 1949); (ii) the Border Security Force constituted under Section 4 o f the Border Security Force Act, 1968 (47 of 1968); (iii) the Central Industrial Security Force constituted under Section 3 of the Central Industrial Security Force Act, 1968(50 of 1968); (iv) the National Security Guard constituted under Section 4 of th e National Security Guard Act, 1986(47 of 1986); BSF RULES 237 (v) the Indo -Tibetan Border Police Force constituted under Section 4 of the Indo -Tibetan Border Police Force Act, 1992(35 of 1992); (vi) the Assam Rifles constituted under section 4 of the Assam Rifles Act, 2006 (47 of 2006); and (vii) the Sashastra Seema Bal constituted under Section 4 of the Sashastra Seema Bal Act, 2007 (53 of 2007). 3. This notification shall come into force on and from the date of its publication in the official Gazatte. [F.No.V - 11026/60/2009 -Arms (Vol.ll)] LOKESH JHA, Jt. Secy. BSF RULES 238 NOTIFICATION New Delhi, the 11th November, 2010 G.S.R. 905(E) - In exercise of the powers conferred by subsection (1) of Section 19, sub -section (2) of Section 22 and Section 23 of the Arms Act, 1959 (54 of 1959), the Central Government hereby empowers the officers of the rank of Assistant Commandant and above and the subordinate officers of the rank of Sub -Inspector and above in the Central Para Military Forces to exercise the powers and perform the duties conferred under Section 19, sub -section (2) of Section 22 and Section 23 of the Arms Act, 1959(54 of 1959) in all the areas where they are deployed or called upon to perform any duty. 2. In this notification, Central Para Military Forces means (i) the Central Reserve Police Force constituted under section 3 of the Central Reserve Police Force Act, 1949 (66 of 1949); (ii) the Border Security Force constituted under Section 4 of the Border Security Force Act, 1968 (47 of 1968); (iii) the Central Industrial Security Force constituted under Section 3 of the Central Industr ial Security Force Act, 1968(50 of 1968); (iv) the National Security Guard constituted under Section 4 of the National Security Guard Act, 1986(47 of 1986); (v) the Indo -Tibet an Border Police Force constituted under Section 4 of the Indo -Tibetan Border Police Force Act, 1992(35 of 1992); (vi) the Assam Rifles constituted under section 4 of the Assam Rifles Act, 2006 (47 of 2006); and BSF RULES 2 39 (vii) the Sashastra Seema Bal constituted under Section 4 of the the Sashastra Seema Bal Act, 2007 (53 of 2007). 3. this notification shall come into force on and from the date of its publication in the official Gazatte. [F.No.V - 11026/60/2009 -Arms (Vol.ll)] LOKESH JHA, Jt. Secy. BSF RULES 240 PUBLIC PREMISES (EVICTION OF UNAUTHORISED OCCUPANTS) ACT, 1971 GOVT OF INDIA MINISTRY OF HOME AFFAIRS NEW DELHI, THE 29th OCT 77 NOTIFICATION S.O. 3520. In exercise of the powers conferred by section 3 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (40 of 1971), the Central Government hereby appoints the officers mentioned in Column (1) of the Table below, being offic er equivalent to the rank of gazetted officers of Government to be estate officers for the purpose of the said Act, who shall exercise the powers conferred and perform the duties imposed on estate Officers by or under the said Act, within the local lim its of their respective jurisdiction in respect of the Public premises specified in the corresponding entries in Column (2) of the said Table. The Table Designation of the Officer Categories of public premises and legal limits of jurisdiction. (a) All Inspectors - Premises under the administrative General BSF control of the Border Security Force situated within the legal limits of their respective jurisdiction. (b) All Deputy -do- Inspectors - General BSF (c) All Comandants -do- BSF Bns. Sd/- (P K G KAYMAL) Dy. Secretary of the Govt of India File No. 25013/19/77 -GPA.II BSF RULES 241 WEST BENGAL MAINTENANCE OF PUBLIC ORDER ACT, 1972 MINISTRY OF HOME AFFAIRS New Delhi, the 12th August, 1974 NOTIFICATION S.O. 2092. In exercise of the powers conferred by sub - section (2) of section 139 of the Border Security Force Act, 1968 (47 of 1968), the Central Government hereby confer with the consent of the State Government of West Bengal upon members of the Border Security Force, the powers which may be exercised by any police officer under Section 13 of the West Bengal Maintenance of Public Order Act, 1972 (West Bengal Act IX of 1972). (F. No. 17/7/70 -CLO of BSF/GPA -I) M. L. MEHTA, Deputy Secy. BSF RULES 242 MADHYA PRADESH ACT, 1968 MINISTRY OF HOME AFFAIRS New Delhi, the 10th March, 1981 ORDER S.O. 159 (E) - In exercise of the powers conferred by subsection (2) of section 139 of the Border Security Force Act, 1968 (47 of 1968), the Central Government hereby confers, with the concurrence of the State Government of Madhya Pradesh, upon members of the Border Security Force the powers which may be exercised by the members of the corresponding ranks of the Madhya Pradesh Special Armed Force under section 8 of the Madhya Pradesh Vishesh Sashastra Bal Adhiniyam, 1968 (Madhya Pradesh Act 29 of 1968). (No. III 11020/1/81 -G & Q) S.S. JOG, Jt. Secy. BSF RULES 243 Published in the gazette of India Part -I Section sub -section (ii) dated 24 July 1971 MADHYA PRADESH ACT, 1968 MINISTRY OF HOME AFFAIRS (GRIH MANTRALAYA) New Delhi, the 6th July 1971 S.O. 2843 - In exercise of the powers conferred by section 68 of the Border Security Force Act, 1968 (47 of 1968), the Central Government hereby declares the posts mentioned in column 2 of the table below as eq uivalent to the posts mentioned in the corresponding entry in column 1 of the said Table. THE TABLE Sl. Posts and ranks Posts and rank in the No. in the Police Border Security Force (1) (2) 1. Confirmed Deputy Confirmed Assistant Superintendent of Commandant. Police. 2. Assistant Superint - Assistant Commandant endent of Police/ Dy -Superintendent of Police. (No.10/1/69 -CLO/BSF/GPA -I) P. P. KHANNA Deputy Secretary BSF RULES 244 DISCIPLINARY POWERS OF VARIOUS OFFICERS U/S55 OF THE BSF ACT -1968 The Director General, with the consent of the Central Government, has empowered the Commandant of a Battalion or Unit to proceed, in the prescribed manner against a subordinate officer serving under his command who is charged with an offence under this Act, and award one or more of the following punishments, that is to say : - (a) Reprimand or severe reprimand; (b) Stoppage of pay and allowances until any proved loss or damage occasioned by the offence of which he is convicted, is made good. 2. In every case in which punishment has been awarded under subsection (1), certified true copies of the proceedings shall be forwarded, by the officer awarding the punishment, to the DIG under whom he may be serving. Authority : - Letter No. F -5 (3)69 -OR/BSF Dated 12 March, 1969 of DD Org. Dte Genl BSF. BSF RULES 245 DISCIPLINARY POWERS OF VARIOUS OFFICERS UNDER SECTION 53 OF THE BORDER SECURITY FORCE ACT, 1968 The Director General, with the consent of the Central Government, has empowered the Officers mentioned in column (i) to proceed in the prescribed manner, against persons subject to the Act, under their command specified in column (2) who are charged with an offence under this Act and award one or more of the punishments mentioned in column (3) below : - Authorit y To whom Punishment awardable Deputy Enrolled persons (a) Imprisonment in Force Comdt. Custody up to 14 days. Under Officers (b) All other punishments mentioned in section 53 to the full extent.Reprimand or severe reprimand. Asstt. Comdt/ Enrolled (a) Imprisonment in Force Coy Comdr/ persons Custody upto 7 days. Adjutant/ Quarter Master (b) All other punishments mentioned in section 53 to the full extent. 2. In every case in which punishment has been awarded under Para-1 above, certified true copies of the proceedings shall be forwarded, by the officer awarding the punishment, to the Commandant. (Authority: - DD (Org) FHQ Letter No. F. 5(3)69/ORG BSF da ted 11 March 69). Note: - 1. The words enrolled persons mentioned in column 2 above against the power of Assistant Commandants excludes the under officer, Assistant Commandants have no
rolled persons mentioned in column 2 above against the power of Assistant Commandants excludes the under officer, Assistant Commandants have no power to punish under officer (Auth CLO letter No. 11(19 )/17-CLO/BSF dated 31 July 1971. BSF RULES 246 FORM OF PROCEEDINGS FOR GENERAL & PETTY SECURITY FORCE COURTS UNDER THE BSF ACT Proceedings of a General/Petty Security Force Court held at... on the___________days of____________20___ __by order of Shri_______________________________Inspector General/ Dy Inspector General BSF________dated the_________day of____________20____. Presiding Officer Shri______________________Rank________Unit_________ Member 1. Shri_________ _____ Rank________Unit_________ 2. 3. 4. Law Officer Shri_________________ Interpreter____________ Trial of No._____________Name _______________________ Rank_________________ Unit _____________________ The order co nvening the Court, the charge -sheet and the ROE (or abstract) are laid before the Court. The Court satisfy themselves that No. ____________ Name________________________Rank_____Unit _____ is not available to serve owing to (Insert reasons) ______ ____ No._______________Name____________________________ Rank___________ Unit _____________________________ Waiting member, takes his place as a member of the Court. The Court satisfy themselves as provided by BSF Rule 65. BSF RULES 247 The accused is brought before the Court. Prosecutor _____________(Legal qualification to be stated) Counsel/Defending Officer. At_______hrs the trial commences. The order convening the Court is read and is marked _____________signed by the Law Officer (Presiding Officer) and attached to the proceedings. The names of the Presiding Officer and Members of the Court are read over in the hearing of the accused, and they severally answer to their names . . Q -1 Do you object to be tried by me as Presiding Officer, or any of the officers whose names you have heard/ read over ? A-1 Note: - All printed matter not applicable to the particular Court being held should be struck out & initialled by the officer responsible for the record (Rule 119). . All questions and answers will be numbered serially throughout the proceedings. . This question will be asked by the Presiding Officer to the accused (Rule 66). BSF RULES 248 B The Presiding Officer, Members and Law Officer are duly sworn/affirmed. Q-2 Do you object to Shri_________________________as interpreter ? A-2 Shri__________________________Rank________ Unit____________is duly sworn/affirmed as Interpreter. Q3 Do you object to Shri________________________as shorthand writer ? A-3 Shri________________________Rank____Unit ______ is duly sworn/affirmed as shorthand writer. CHARGE SHEET B-2 The charge sheet is signed by the Law Officer (Presiding Officer) marked B -2 and annexed to the Proceedings. The accused is arraigned upon each charge in the above mentioned charge sheet (Rule 71). Q-4 Are you guilty or not guilty of the (first) charge against you, which you have heard/read ? A-4 Q-5 Are you guilty or not guilty of the second charge against you, which you have heard/read ? A5_____________________________________________ Note: - @ The accused having pleaded guilty to the charge (s), the provision of BSF Rule 78 are here complied with . If the trial proceeds on more than one charge sheet, the trial on each charge sheet, from arraignment to finding, will be kept separate and distinct. @ If the trial proceeds upon any charge to which there is a plea of not guilty the court will not proceed upon the record of plea of guilty until after the finding on that other charge [Rule 80 (2)]. BSF RULES 249 C PROCEEDINGS ON PLEA OF NOT GUILTY Q-6 Do you wish to apply for an adjournment on the Rule 83. ground that any of the rules relating to procedure before trial have not been complied with and that you have been prejudiced thereby or on the ground that you have not had sufficient op portunity for preparing your defence? A-6 The prosecutor hands in a written address which is read, marked _____________ signed by the Law Officer (Presiding Officer) and attached to the proceedings. The prosecutor proceeds to call witnesses. First witness for prosecution PW-1 No.__________Name_______________________ Rank________Unit___________being duly sworn/ affirmed is examined by the prosecutor. Note : 1. At the end of eac h witnesss evidence, provisions of BSF Rule 90 will be complied with and a record made. 2. In case the presiding Officer, Law Officer or a member address any question to the witness, BSF Rule 89 should be complied with and the fact recorded. 3. For form of oath or affirmation see BSF Rule 88(4). BSF RULES D The prosecution is closed. DEFENCE Q-7 Do you intent to call any witness in your defence? A-7 Q-8 Is he a witness to character only ? 250 A-8 Instructions to the Court When the answers to the above questions have been recorded, the Court shall comply with the provisions of BSF Rule 93. The Evidence of the witnesses for the defence (including witnesses as to character) is recorded overleaf. Such evidence will be taken after the questions, if any, to the accused have been addressed. Q-9 Do you intend to give evidence on oath as a w itness or make a statement without being sworn ? A-9 The accused in his defence says______________or hands in a written address which is read marked_______________signed by the Law Officer (Presiding Officer) and attached to the Proceedings, or the accused declines to make any statement. Note: - * In case the accused wishes to give evidence on oath, he will be examined as any other witness. BSF RULES 251 QUESTION TO THE ACCUSED * Rule 93 (2) The Law Officer (Presiding Officer) reads and explains the provisions of BSF Rule 93. Having ascertained that the accused understands the provisions read over to him, the Court (Law Officer) Proceed(s) to ask the following questions. Q-10 A-10 _______________________________________________ Q-11 A-11________________________________________________ Q-12 A-12________________________________________________ Instructions to the Court 1. The accused must be questioned only to afford an opportunity of offering an explanation, if he so wishes, where absence of such explanation, would affect him adversely. D 2 The accused (Counsel or Defending Officer) makes an opening address, (or hands in a written opening address which is read, marked ____signed by the Law Officer (Presiding Officer) and attached to the Proceedings). The accused calls the following witness* (as to character). * DW-I CC PROCEEDINGS ON PLEA OF GUILTY 2. 3. 4. 5. 6. 7. BSF RULES Questions put to him should be such as will enable him to explain any circumstances appearing against him, which if unexplained, may lead to conviction. Questions must not be put to the accused in order to supplement the case for the prosecution. Questions to the accused and his answers both will be recorded verbatim as far as possible. All addresses by Prosecutor, accused, counsel, or defending officer, whether recorded by the Court or handed in writing (and written summing up by Law Officer) will be attached to the Proceedings in the order in which they are made. Written addresses (and summing up) will be read to the Court, marked and signe d by the Presiding Officer (Law Officer except summing up). If any person who is entitled to make an address, declines to do so, a record will be made to that effect. For order of addresses See BSF Rule 96. First witness for the defence (as to character)* Shri________________________being duly sworn (or 252 affirmed) is examined by the accused (or by counsel or defending officer). Note : - At the end of each witnesss evidence, Provisions of BSF Rules 89 and 90, as applicable, will be complied with and the fact recorded. * If witnesses are called excepting as to character, these words are to be struck out. BSF RULES 253 * (The charge/charges to which he was pleaded guilty is/are read to him again). * to be struck out in case on plea of not guilty has been proceeded with. The accused No.__________Name_________________ Rank________Unit___________is found guilty of the charge (all the charges) or is found guilty of the_______________charge & not guilty of the_______________charge. Announcement of Finding(s) The finding(s) is/ are read in open Court and is/are announced as being subject to confirmation. The ROE (or abstract) is read, marked_____ signed by the Law Officer (Presiding Officer) and attached to the Proceedings. If there is no ROE (or abstract) the Court shall record sufficient evidence to enable it to determine the sentence, Rule 81(2) ___________________________________________ Q-13 Do you wish to make any statement in mitigation of punishment ? A-13 The accused, in mitigation of punishment, says (or hands in a written statement which is read, marked________________signed by the Law Officer (Presiding Officer) & attached to the Proceedings.) . The Court being satis fied from the statement of the accused or Record (or abstract) of evidence or otherwise that the accused did not understand the effect of the plea of guilty, the record and enters a plea of not guilty. . To be struck out if not applicable , Rule 82(2) BSF RULES 254 DD WITNESSES FOR DEFENCE ON PLEA OF GUILTY Q-14 Do you wish to call any witness as to character ? A-14 Q-15 Do you wish to call any witness in mitigation of punishment ? A-15_______________________________________________ Evidence as to character and/or in mitigation of punishment. Shri__________________________being duly sworn/ affirmed i s examined by the accused or by counsel or defending officer. N.B : - At the end of each witnesss evidence, provisions of BSF Rules 89 and 90, as applicable be complied with and the fact recorded. BSF RULES 255 FINDING The Court is closed for the consideration of the finding. * to be omitted except in case of a plea of not guilty having been proceeded with. The court find that the accused No.________________ Rank________Name________________________Unit_______ is guilty (not guilty) of the charge. ANNOUNCEMENT OF FINDING (S) The Court being reopened the accused is again brought before it. The finding(s) is/are read in open Court, and is/are announced as being subject to confirmation. BSF RULES 256 PROCEEDINGS ON CONVICTION No.___________Rank_____Na me________________ Unit/Bn___________is duly sworn/affirmed. Q-16 What records have you to produce in proof of former convictions against the accused and his character ? A-16 I produce a statement certified under the hand of the officer having custody of the Bn records. The statement is read, marked_____________signed by the Law Officer (Presiding Officer) and attached to the Proceedings. Q-17 Is the accused, th e person named in the statement you have, heard/read ? A-17 Q-18 Have you compared the contents of the above statement with the Bn records ? A-18 Q-19 Are they true extract from the Bn records, and is the statement of entries in the default er sheet, a fair and true summary of these entries ? A-19 Cross examined by the accused (or by Counsel or defending officer). Re-examined. or The accused declined to cross examine the witnesses. Note: - provisions of BSF Rules 89 & 90 , as applicable, will be complied with and the fact recorded. Q-20 Do you wish to address the Court in mitigation of sentence? A-20 The Court is closed for the consideration of the sentence. BSF RULES 257 SENTENCE The Court sentence the accused____________ No___________Rank______Name__________________ __of__ ___ Bn/Unit__________________to__________________. ANNOUNCEMENT OF SENTENCE The court being reopened, the accused is brought before it. The sentence is announced in open Court as being subject to confirmation. Signed at_________this_________day of______20___. (Law Officer) Presiding Officer Confirmation Promulgation [Rule 106 (8)] The finding and sentence of the General/Petty Security Force Court held at______________(Place)_______________ from_____________day to___________day for the trial of
ty Security Force Court held at______________(Place)_______________ from_____________day to___________day for the trial of the accused____________were promulgated to the accu sed by me at_________________(place) on___________________day of________20 ___. Extracts for battalion records have been taken/No record has been kept of the finding and sentence. Place____________ Signature Date ____________ (Commandant) To be used in case of acquittal on all charges. BSF RULES 258 FORM OF PROCEEDINGS FOR SUMMARY SECURITY FORCE COURT A Proceedings of a Summary Security Force Court held at__________on the______________day of________________ ___________20__________by________________Commandant ______Bn for the trial of all such accused persons as he may duly have brought before him. PRESENT COMMANDANT____________ ATTENDING THE TRIAL INTERPRETER FRIEND OF THE ACCUSED The Officers assemble at the________________and the trial commences at_____________hrs. The accused No_________________Rank__________ Name__________________________of___________is brought (Called if an under officer) into Court. * _________the Court, is duly sworn/affirmed ________is sworn/affirmed as interpreter. All witnesses are directed to withdraw from the Court. 1. Enter rank and name of the Officer holding the trial. 2. Throughout these proceedings he is referred to as The Court. 3. Inapplicable portions be deleted and initialed by the Court. BSF RULES 259 B The charge sheet is read (translated) and explained the accused, marked___________signed by the Court and attached to the proceedings. Question to the accused Q-1 How say you No__________________Rank_______ Name______________________________of_________are you guilty or not guilty of the first charge /______________ charge? Ans-1 ** The accused having pleaded guilty to______________ charge, the Court explains to the accused the meaning of charge(s) to which he has pleaded guilty and ascertains that the accused understands the nature of the charge(s) to which he has pleaded guilty. The Court also inform the accused in the language he understands, the general effect of that plea and the difference in procedure which will be followed consequent to the said plea. The Court ha ving satisfied itself that the accused understands the charge(s) and the effect of his plea of guilty and satisfied from the record/abstract of evidence or otherwise that there is no need for the accused to withdraw his plea of guilty, accepts his plea and records the same. The provisions of Rule 142 (2) are complied with. (Signature of the (Signature of the firiend (Signature of the accused with date) of the accused with date) Court with date) * In case of more than one charge accuse d should be questioned separately. ** In cases where on arraignment, an accused pleads guilty to a charge, Rule 142 (2) should be explained to the accused and the above minute should be recorded in the proceedings before recording a finding of Guil ty. BSF RULES 260 C PROCEEDINGS ON A PLEA OF GUILTY The record of evidence is read (translated), explained, marked_______________signed by the Court and attached to the Proceedings. The accused No._______________Rank__________ Name______________________of_________is found guilty of the charge (all the charges). Q- Do you wish to make any statement in reference to the charge or in mitigation of Punishment ? Question to the accused . Ans- The accused says._____________________________ Q - Do you wish to call any witness as to character ? Question to the accused . Ans- BSF RULES 261 D PROCEEDINGS ON A PLEA OF NOT GUILTY PROSECUTION PROSECUTION Ist Witness __________________ : Religion to be recorded : __________________ (Hindu, Muslim -affirm; __________________ Sikh, Christian -sworn) being duly sworn/affirmed is examined by the Court. Note: - If the accused declines to cross examine witness for the Prosecution, the fact must be recorded. The fact that the Provisions of Border Security Force rule 90 have been complied with must be recorded at the conclusion of the evidence of each witness. BSF RULES 262 D-2 PROSECUTION 2nd Witness ____________________Religion to be recorded. ____________________(Hindu, Muslim -affirm; ____________________Sikh, Christian -sworn). being duly sworn/affirmed is examined by the Court. Note: - If the accused declines to cross examine a witness for the Prosecution, the fact must be recorded. The fact that the Provisions of Border Security Force rule 90 have been complied with, must be recorded at the conclusion of the evidence of each witness. BSF RULES 263 E THE PROSECUTION IS CLOSED Q - Do you intend to call any witness in your defence ? (Question to the accused.) Ans- DEFENCE The accused is called upon for his defence and states : - No oath/affirmation to be administered to the accused. Accused not to be cross examined. BSF RULE 264 F Defence 1st Witness _______________________: Religion to be recorded. : _______________________: (Hindu, Muslim -affirm; _______________________: Sikh, Christian -sworn). Being duly sworn/affirmed is examined by the accused. Note: - If necessary the Court may cross examine and the accused may re -examine a witness for the defence. The fact that the Provisions of Border Security Force rule 90 have been complied with must be rec orded at the conclusion of the evidence of each witness. BSF RULE 265 G THE DEFENCE IS CLOSED REPLY REPLY 1st Witness ______________________: Religion to be recorded.: ______________________: (Hindu, Muslim -affirm; ______________________: Sikh, Christian -sworn). Being duly sworn/affirmed is examined by the Court. Note : - If the accused declines to cross examine a witness for the Prosecution, the fact must be recorded. The fact that the provision of Border Security Force rule 90 have been complied with must be recorded at the conclusion of the evidence of each witness. BSF RULES 266 H VERDICT OF THE COURT I am of the opinion on the evidence before me that the accused No__________Rank______Name_____________ of______________________is not guilty of the charge (all the charges) and acquit him of the same. The verdict is read out and the accused released Signed at_______________this_______________day of____________20 ____ COMMANDANT HOLDING THE TRIAL The trial closes at - hrs. Note : - This page is to be used only in cases where the accused is found not guilty of all the charges. BSF RULES 267 I VERDICT OF COURT I am of the opinion on the evidence before me that accused No___________Rank_____Name_________________ is (guilty of the charge or not guilty of the first charge and guilty of the second charge or is guilty of all the charges). PROCEEDINGS BEFORE SENTENCE The following minutes by the Court are read and explained. Instruction :- If the Court does not record the accused persons convictions and character of its own knowledge, evidence as to these matters will be taken. It is within my own kno wledge from the records of the____________that the accused has_________________been previously convicted by Security Force Court or Criminal Court (A separate statement giving full particulars of any previous conviction to be annexed when necessary.) That the following is a fair and true summary of entries in his defaulter sheet exclusive of convictions by a Security Force Court or a Criminal Court. Within last 12 months since enrolment For______________times____________times______________ For______________times____________times______________ For______________times___________times______________ That he is at present under going________sentence. That, irrespective of this t rial, his general character has been_______. BSF RULES 268 That his age is_________. His service is _________and his rank is___________(date since held). That he has been in arrest/confinement for ___days____ * That he is in possession of the following decorations and rewards : - ___________________________________. * Any recognised acts of gallantry or distinguished conduct should also be entered here. BSF RULES 269 J SENTENCE BY THE COURT Taking all these matters into consideration, I now sentence the accused No__________________Rank_________ Name______________________of_________to___________. Signed at__________this_______day of_______20___ COMMANDANT (Holding the trial) The trial closes at______________hrs. Remarks by the reviewing officer (Border Security Force Act Section 115). No_________________of__________20________ Trial by Summary Security Force Court under the Border Security Force Act. No________________of___________at____________ on the__________________day of__________20___________ Registered No___________of 20________________Frontier CHIEF LAW OFFICER BSF RULES 270 PROFORMA FOR THE STATEMENT OF PREVIOUS CONVICTIONS AND GENERAL CHARACTER OF THE ACCUSED PERSON AS REQUIRED UNDER BSF RULE 101 1. Name and number of the accused : 2. Present rank : 3. Date of enrolment/appointment in BSF : 4. Date of promotion in the present rank : 5. Total length of service : 6. Date of birth and age : 7. The period of arrest/confinement till the date of commencement of trial : 8. The decorations and awards (Any recognised act of gallantry or : distinguished conduct should also be entered here). : 9. The details of convictions by Security : Force Court and criminal Court as per annexure. 10. Punishment awarded by an officer : exercising authority u/s 53 or 55 of the BSF Act. Within last 12 months Since enrolment/appointment (a) u/s____for____times (a) u/s____for____times (b) u/s____f or____times (b) u/s____for____times (c) u/s____for____times (c) u/s____for____times 11. That he is at present undergoing__________sentence. 12. That irrespective of this trial, his general character has been_____. (It should be assessed on the basis of his record as it stood prior to the present trial). (Signature) Commandant or the Officer having the custody of service records/confidential dossiers. BSF RULES 271 Annexure STATEMENT OF CONVICTIONS BY SECURITY FORCE COURT OR CRIMINAL COURT Verdict of the Court Srl. Date of Particulars By SFC/ Finding sentence Remarks No. trial of the Criminal Charge Court =o = Foot Note. - The principal rules were published in Gazette of India, vide number S.O. 2336, dated the 9th June, 1969 and subsequently amended by : - (i) S.O. 1362 dated the 07th April, 1970; (ii) S.O. 4034 dated the 21st October, 1971; (iii) S.O. 5087 dated the 06th Novemebr, 1971; (iv) S.O. 329(E) dated the 29th April, 1981; (v) S.O. 155 dated the 01st March, 1983; (vi) S.O. 187(E) dated the 23rd March, 1984; (vii) S.O. 436(E) dated the 29th May, 1990; (viii) S.O.188(E) dated the 13th March, 1993; (ix) S.O. 1040 dated the 25th March, 1996; (x) S.O. 1686 dated the 31st May, 1996; (xi) S.O. 166 dated the 14th January, 1998; (xii) S.O. 55(E) dated the 01st February, 1999; (xiii) S.O. 544 dated the 15th February, 2002; (xiv) S.O. 1644 dated the 08th May, 2002; (xv) S.O.
1644 dated the 08th May, 2002; (xv) S.O. 1866 dated the 27th June, 2003; (xvi) S.O. 2032 dated the 09th July, 2003; (xvii) S.O. 3678 dated the 06th September, 2006. (xviii) S.O. 2628(E), dated the 25th Nov 2011; and (xix) SO,2755(E) dated the 6th Mar 2012. BSF ACT 272 STATEMENT OF OBJECTS AND REASONS The Border Security Force was created towards the end of 1965 when the Directorate -General of Border Security Force was set up in the Ministry of Home Affairs under a senior police officer designated as the Director -General of Border Security Force. This Force has been charged with the responsibility of ensuring the security of the Indo -Pakistan international border, instilling a sense of security among the people living in the border areas, and preventing trans -border crime, smuggling and unauthorized entry into or exit from Indian territory. The Force was raised under the Central Reserve Police Act, 1949. However, considering the nature and purpose of the Force and the experience gained during the last two years , it has been felt that the Force should be regulated by a separate self -contained statute which will provide for its special needs, especially the needs of efficiency and discipline. The present Bill seeks to achieve this object. 2. As the Border Secu rity Force is charged with the policing of the borders, the Bill seeks to ensure that the standards of efficiency and discipline of the Force are of a very high order. 3. The notes on clauses explain in brief the various provisions of the Bill. Y. B. CHAVAN NEW DELHI; The 4th April, 1968. 2 The Gazette of India EXTRAORDINARY PART II - SECTION 1 PUBLISHED BY AUTHORITY 1890 {No. 59} NEW DELHI, MONDAY, SEPTEMBER 2, 1968/BHADRA11, 1890 Separate paging is given to this part in order that it may be filed as a separate compilation. MINISTRY OF LAW (Legislative Department) New Delhi, the 2nd September, 1968/Bhadra 11,1890 (Saka) The following Act of Parliament re ceived the assent of the President on the 2nd September, 1968, and is hereby published for general information:
THE MARRIED WOMEN S PROPERTY ACT, 1874 ACT NO. 3 OF 18741 [24th February , 1874] . An Act to explain and amend the law relating to certain married women, for other purposes . Preamble. WHEREAS it is expedient to make such provision as hereinafter appears for the enjoyment of wages and earnings by women married before the first day of January, 1866, and for insurances on lives by persons married before or after that day: AND WHEREAS by the India n Succession Act, 18652 (10 of 1865), section 4, it is enacted that no person shall by marriage acquire any interest in the property of the person whom he or she marries, nor become incapable of doing any act in respect of his or her own property, which he or she could have done, if unmarried: AND WHERE AS by force of the said Act all women to whose marriages it applies are absolute owners of all property vested in, or acquired by , them, and their husbands do not by their marriage acquire any interest in such property, but the said Act does not protect su ch husbands from liabilities on account of the debts of their wives contracted before marriage, and does not expressly provide for the enforcement of claims by or against such wives: It is hereby enacted as follows: I.PRELIMINARY 1. Short title. This Act may be called the Married Womens Property Act, 1874. 2. Extent and application .3[It extends to the whole of India except the State of Jammu and Kashmir .] But nothing herein contained applies to any married woman who at the time of her marriage professed the Hindu, Muhamm adan, Buddhist, Sikh or Jain a religion, or whose husband, at the time of such marriage, professed any of those religions. And the 4[State Government] may from time to time, by order, either retrospectively from the passing of thi s Act or prospectively, exempt from the operation of all or any of the provisions of this Act the members of any race, sect or tribe or part of a race, sect or tribe, to whom it may consider it impossible or inexpedient to apply such provisions. The 4[Stat e Government] may also revoke any such order, but not so that the revocation shall have any retrospective effect. All orders and revocations under this section shall be published in the Official Gazette. 5 * * * * 3. [Commencement .] Rep. by the Repealing Act , 1876 (12 of 1876), s. 1 and Schedule . II.MARRIED WOMENS WAGES AND EARNINGS 64. Married women s earnings to be their separate property .The wages and earnings of any married woman acquired or gained by her after the passing of this Act, in any employment, occupation or trade carried on by her and not by her husband, 1. The Act has been extended to and brought into force in Dadra and Nagar Haveli by Reg. 6 of 1963, s. 2 and the First Schedule (with modification) (w.e.f. 1 -7-1965). 2. The relevant provision of the Indian Succession Act, 1925 (39 of 1925) may now be referred to. 3. Subs. by Act 61 of 1959, s. 2, for the former para. (w.e.f. 1-3-1960). 4. The original words G.G. in C. have successively been amended by Act 38 of 1920, the A.O. 1937 and the A.O. 1950 to read as above. 5. The last paragraph rep . by Act 39 of 1925, s. 392 and the Ninth Schedule. 6. Cf. the Married Womens Property Act 1870 (33 and 34 Vict., c. 93), s. 1, now rep. by Married Womens Property Act, 1882 (45 and 46 Vict., c. 75). . Vide Notification No. S.O. 3912 (E), dated 30th October, 2019, this Act is made applicable to the Union territ ory of Jammu and Kashmir and the Union territory of Ladakh. 3 and also any money or other property so acquired by her through the exercise of any literary, artistic or scientific skill, and all savings from and investments of such wag es, earnings and property, shall be deemed to be her separate property, and her receipts alone shall be good discharges for such wages, earnings and property. III. INSURANCES BY WIVES AND HUSBANDS 15. Married women may effect policy of insurance .Any married woman may effect a policy of insurance on her own behalf and independently of her husband; and the same and all benefit thereof, if expressed on the face of it to be so effected, shall ensure as her separate property, and the contract evidenced by such policy shall be as valid as if made with an unmarried woman. 26. Insurance by husband for benefit of wife .3[(1) A policy of insurance effected by any married man on his own life, and expressed on the face of it to be for the benefit of his wife, or of his wife and children, or any of them, shall ensure and be deemed to be a trust for the benefit of his wife, or of his wife and children, or any of them, according to the interest so expressed, and shall not, so long any object of the trust remains, be subject to the c ontrol of the husband or to his creditors, or form part of his estate. When the sum secured by the policy becomes payable, it shall, unless special trustees are duly appointed to receive and hold the same, be paid to the Official Trustee of the 4[State] in which the office at which the insurance was effected is situated, and shall be received and held by him upon the trusts expressed in the policy, or such of them as are then existing. And in reference to such sum he shall stand in the sa me position in all respects as if he had been duly appointed trustee thereof by a High Court, under Act No. 17 of 1864 5[to constitute an Office of Official Trustee], s.10. Nothing herein contained shall operate to destroy or impede the right of any credit or to be paid out of the proceeds of any policy of assurance which may have been effected with intent to defraud creditors. 6[(2) Notwithstanding anything contained in s. 2, the provisions of sub-section ( 1) shall apply in the case of any policy of insurance such as is referred to therein which effected (a) by any Hindu, Muhamma dan, Sikh or Jain (i) in Madras, after the thirty -first day of December, 1913, or (ii) in any other territory to which this Act extended immediately before the commencement of the Married Women s Property (Extension) Act, 1959 (61 of 1959) , after the first day of April, 1923, or (iii) in any territory to which this Act extends on and from the commencement of the Married Women s Property (Extension) Act, 1959 (61 of 1959) ; (b) by a Buddhist in any territory to which this Act extends, on or after the commencement of the Married Women s Property (Extension) Act, 1959 (61 of 1959) : 1. Cf. the Married Womens Property Act, 1870 (33 and 34 Vict., c. 93), s. 10, para. 1. 2. Cf. the Married Womens Property Act, 1870 (33 and 34 Vict., c. 93), s.10, para. 2. 3. S. 6 renumbered as sub -section ( 1) of that section by Act 13 of 1923, s. 2. 4. The word Presidency has been successively amended by the A.O. 1937, the A.O. 1950 and the Adaptation of Laws (No. 2) Order, 1956, to read as above. 5. The relevant provisions of the Offici al Trustees Act, 1913 (2 of 1913) may be referred to. 6. Subs. by Act 61 of 1959, s. 3 for sub -section ( 2), (w.e.f. 1 -3-1960) , Earlier inserted by 13 of 1923, s. 2. 4 Provided that nothing herein contained shall affect any right or liability whic h has accrued or been incurred under any decree of a competent court passed (i) before the first day of April, 1923, in any case to which sub-clause (i) or sub-clause (ii) of clause (a) applies ; or (ii) before the commencement of the Married Women s Property (Extension) Act, 1959 (61 of 1959) , in any case to which sub-clause (iii) of clause (a) or clause (b) applies.] IV.LEGAL PROCEEDINGS BY AND AGAINST MARRIED WOMEN 17. Married women may take legal proceedings .A married woman may maintain a suit in her own name for the recovery of property of any description which, by force of the said Indian Succession Act, 18652 (10 of 1865) or of this Act, is her separate property; and she shall have, in her own name, the sam e remedies, both civil and criminal, against all persons, for the protection and security of such property, as i f she were unmarried, and she shall be liable to such suits, processes and orders in respect of such property as she would be liable to if she w ere unmarried. 8. Wife s liability for postnuptial debts .If a married woman (whether married before or after the first day of January, 1866) possesses separate property, and if any person enters into a contract with her with reference to such property, or on the faith that her obligation arising out of such contract will be satisfied out of her separate property, such person shall be entitled to sue her, and , to the extent of her separate property, to recover against her whatever he might have recovered in such suit had she been unmarried at the date of the contract and continued unmarried at the execution of the decree : 3[Provided that nothing herein contained shall (a) entitle such person to recover anything by attachment and sale or otherwise out of any property which has been transferred to a woman or for her benefit on condition that she shall have no power during her marriage to transfer or charge the same or her beneficial interest therein, or (b) affect the liability of a husband for debts contracte d by his wife s agency expressed or implied.] V.HUSBAND'S LIABILITY FOR WIFE'S DEBTS 49. Husband not liable for wife s antenuptial debts .A husband married after the thirty -first day of December, 1865 shall not by reason only of such marria ge be liable to the debts of hi s wife contracted before marriage, but the wife shall be liable to be sued for, and shall, to the extent of her separate property, be liable to satisfy such debts as if he had continued unmarried: Proviso .Provided that nothing contained in this section shall 5** invalidate any contract into which a husband may, before the passing of this Act, have entered in consideration of hi s wife s ante-nuptial debts. 6[VI.HUSBAND S LIABILITY FOR WIFES BREACH OF TRUST O R DEVASTATION 10. Extent of husbands liability for wifes breach of trust or devastation. Where a woman is a trustee, executrix or administratrix, either before or after marriage, her husband shall not, unless he acts or intermeddles in the trust or administration, be liable for any breach of trust committed by her, or for any misapplication, l oss or damage to the estate of the deceased caused or made by her, or for any loss to such estate arising from her neglect to get in any part of the property of deceased.] ______ _ 1. Cf. the Married Womens Property Act, 1870 (33 and 34 Vict ., c.93), s. 11, rep. By the Married Womens Property Act, 1882 (45 and 46 Vict., c.75). 2. See now the Indian Succession Act, 1925 (39 of 1925). 3. Subs. by Act 21 of 1929, s. 2, for the proviso. 4. Cf. the Married Womans Property Act, 1870 (33 and 34 Viet., c. 93), s. 12. 5. The words affect any suit instituted before the passing of this Act, no r rep. by Act 12 of 1891, s. 2 and the First Schedule. 6. Ins. by Act 18 of 1927, s. 3.

THE NEGOTIABLE INSTRUMENTS ACT, 1881 ACT NO. 26 OF 18811 [9th December, 1881.] An Act to define and amend the law relating to Promissory Notes, Bills of Exchange and Cheques . Preamble. Whereas it is expedient to define and amend the law relating to promissory notes, bills of exchange and cheques; It is hereby enacted as follows: CHA PTER I PRELIMINARY 1. Short title. This Act may be called the Negotiable Instruments Act, 1881. Local extent. Saving of usages relating to hundis, etc. It extends to the whole of India 2*** but nothing herein contained affects the 3Indian Paper Currency Act, 1871 (3 of 1871), section 21, or affects any local usage relating to any instrument in an oriental language: Provided that such usages may be excluded by any words in the body of the instrument which indicate an intention that the legal relations of the parties thereto shall he governed by this Act; Commencement. and it shall come into force on the first day of March, 1882. 2. [Repeal of enactments .] Rep. by the Repealing and Amending Act, 1891 (12 of 1891), s. 2 and the Schedule I. 3. Interpretation -clause. In this Act 4* * * * * Banker .5[banker includes any person acting as a banker and any post office savings bank;] 6* * * * * CHAPTER II OF NOTES , BILLSAND CHEQUES 4. Promissory note. A Promissory note is an instrument in writing (not being a bank -note or a currency -note) containing an unconditional undertaking, signed by the maker, to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument. Illustrations A signs instruments in the following terms: (a ) I promise to pay B or order Rs. 500. (b) I acknowledge myself to be indebted to B in Rs. 1,000, to be paid on demand, for value received. (c) Mr. B, I O U Rs. 1,000. (d) I promise to Pay B Rs. 500 an d all other sums which shall be due to him. (e) I promise to Pay B Rs. 500, first deducting thereout any money which he may owe me. (f) I promise to Pay B Rs. 500 seven days after my marriage with C. (g) I promise to Pay B Rs. 500 on D's death, provided D leaves me enough to pay that sum. 1. The Act has been extended to Goa, Daman and Diu with modifications, by Reg. 12 of 1962, s. 3 and Sch., (w.e.f. 1 -10-1965) extended to and brought into force in Dadra and Nagar Haveli by Reg. 6 of 1963, s. 2 and Sch. I (w.e.f. 1 -7-1965), to the Union territory of Lakshadweep by Reg. 8 of 1965, s. 3 and the Sch. (w.e.f. 1 -10-1967) [and to the State of Arunac hal Pradesh by Act 44 of 1993, s. 2 and the Sch. (w.e.f. 1 -7-1994)]. 2. The words except the State of Jammu and Kashmir, which were subs. by Act 3 of 1951, for except Part B States, omitted by Act 62 of 1956, s. 2 and the Sch. 3. Rep. by the Indian Pap er Currency Act, 1923 (10 of 1923). See now the Reserve Bank of India Act, 1934 (2 of 1934), s. 31. 4. Definition of the word India, which was subs. by Act 3 of 1951, for the definition of the word State, omitted by Act 6 2 of 1956, s. 2 and the Sch . 5. Subs. by Act 37 of 1955, s. 2, for the definition of the word banker. 6. Omitted by Act 53 of 1952, s. 16 (w.e.f. 14 -2-1956). 9 (h) I promise to Pay B Rs. 500 and to deliver to him my black horse on 1st January next. The instruments respectively ma rked (a) and (b) are promissory notes. The instruments respectively ma rked (c), (d), (e), (f), (g) and (h)are not promissory notes. 5. Bill of exchange .A bill of exchange is an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay a certain sum of money only to, or to the order of, a certain person or to the bearer of the instrument. A promise or order to pay is not conditional, within the meaning of this section and section 4, by reason of the time for payment of the amount or any instalment thereof being expressed to be on the lapse of a certain period after the occurrence of a specified even which, according to the ordinary expectation of mankind, is certain to happen, although the time of its happening may be uncertain. The sum payble may be certain, within the meaning of this section and section 4, although it includes future interest or is payable at an indi cated rate of exchange, or is according to the course of exchange, and although the instrument provides that, on default of payment of an instalment, the balance unpaid shall become due. The person to whom it is clear that the direction is given or that pa yment is to be made may be a certain person, within the meaning of this section and section 4, although he is mis -named or designated by description only. 1[6. Cheque .A cheque is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque and a cheque in the electronic form. Explanation I.For the purposes of this section, the expressions 2[(a) a cheque in the electronic form means a cheque drawn in electronic form by using any computer resource and signed in a secure system with digital signature (with or without biometrics signature) and asymmetric crypto system or with electronic signature, as the case may be ;] (b) a trunc ated cheque means a cheque which is truncated during the course of a clearing cycle, either by the clearing house or by the bank whether paying or receiving payment, immediately on generation of an electronic image for transmission, substituting the furth er physical movement of the cheque in writing. Explanation II. For the purposes of this section, the expression clearing house means the clearing house managed by the Reserve Bank of India or a clearing house recognised as such by the Reserve Bank of In dia.] 3[Explanation III.For the purposes of this section, the expressions asymmetric crypto system , computer resource , digital signature , electronic form and electronic signature shall have the same meanings respectively assigned to them in the Information Technology Act, 2000(21 of 2000).] 7. Drawer Drawee .The maker of a bill of exchange or cheque is called the drawer; the person thereby directed to pay is called the drawee. Drawee in case of need . When in the Bill or in any indorsement thereon the name of any person is given in addition to the drawee to be resorted to in case of need such person is called a drawee in case of need. Acceptor .After the drawee of a bill has si gned his assent up on the bill, or, if there are more parts thereof than one, upon one of such parts, and delivered the same, or given notice of such signing to the holder or to some person on his behalf, he is called the acceptor. Acceptor for honour . 4[When a bill of exchange has been noted or protested for non -acceptance or for better security,] and any person accepts it supra protest for honour of the drawer or of any one of the indorsers, such person is called an acceptor for honour. 1. Subs. by Act 55 of 2002, s. 2, for section 6 (w.e.f. 6 -2-2003). 2. Subs. by Act 26 of 2015, s.2, for clause ( a) (w.e.f. 15 -6-2015) 3. The Explanation III, ins. by s. 2, ibid, (w.e.f. 15 -6-2015). 4. Subs. by Act 2 of 1885, s. 2, for When acceptance is refused and the bill is protested for non -acceptance. 10 Payee .The person named in t he instrument, to whom or to whose order the money is by the instrument directed to be paid, is called the Payee. 8. Holder .The holder of a promissory note, bill of exchange or cheque means any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto. Where the note, bill or cheque is lost or destroyed, its holder is the person so entitled at the time of such loss or destruction. 9. Holder in due course .Holder in due course means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or indorsee thereof, if 1[payable to order,] before the amount mentioned in it became payable, and witho ut having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title. 10. Payment in due course .Payment in due course means payment in accordance with the apparent tenor of the instrument in good fait h and without negligence to any person in possession thereof under circumstances which do not afford a reasonable ground for believing that he is not entitled to receive payment of the amount therein mentioned. 11. Inland instrument. A promissory note, bil l of exchange or cheque drawn or made in 2[India] and made payable in, or drawn upon any person resident in , 2[India] shall be deemed to be an inland instrument. 12. Foreign instrument. Any such instrument not so drawn, made or made payable shall be deeme d to be a foreign instrument. 13.Negotiable instrument. 3[(1) A negotiable instrument means a promissory note, bill of exchange or cheque payable either to order or to bearer. Explanation (i)A promissory note, bill of exchange or cheque is payable to order which is expressed to be so payable or which is expressed to be payable to a particular person, and does not contain words prohibiting transfer or indicating an intention that it shall not be transferable. Explanation (ii)A promissory note, bill of exchange or cheque is payble to bearer which is expressed to be so payable or on which the only or last indorsement is an indorsement in blank. Explanation (iii)Where a promissory note, bill of exchange or cheque, either originally or by indorsement, is expressed to be payable to the order of a specified person, and not to him or his order, it is nevertheless payable to him or his order at his option.] 4[(2) A negotiable instrument may be made payable to two or more payees jointly, or it m ay be made payable in the alternative to one of two, or one or some of serveral payees.] 14. Negotiation. When a promissory note, bill of exchange or cheque is transferred to any person, so as to constitute that person the holder thereof, the instrument is said to be negotiated. 15. Indorsement. When the maker or holder of a negotiable instrument signs the same, otherwise than as such maker, for the purpose of negotiation, on the back or face thereof or on a slip of paper annexed thereto, or so signs for th e same purpose a stamped paper intended to be completed as a negotiable instrument, he is said to indorse the same, and is called the indorser. 16. Indorsement in blank and in f ull.5[(1)] If the indorser signs his name only, the indorsement is said to be in blank, and if he adds a direction to pay the amount mentioned in the instrument to, or to the order of, a specified person, the indo rsement is said to be in full, and the person so specified 1. Subs. by Act 8 of 1919. s. 2, for payable to, or to the order of, a payee, . 2. Subs. by Act 36 of 1957, s. 3 and the Second Schedule a State. 3. Subs. by Act 8 of 1919, s. 3, for the sub -section (1). 4. Ins. by Act 5 of 1914, s. 2. 5. S. 16 renumbered as sub -section ( 1) by s. 3, ibid. 11 Indo rsee. is called the indorsee of the instrument. 1[(2) The provisions of this Act relating to a payee shall apply with the necessary modifications to an indorsee.] 17. Ambiguous instruments. Where an instrument may be construed either as a promissory note or bill of exchange, the holder may at his election treat it as either, and the instrument shall be thenceforward treated accordingly. 18. Where amount is stated differently in figures and words. If the amount undertaken or ordered to be paid is state d differently in figures and in words, the amount stated in words shall be the amount undertaken or ordered to be paid. 19. Instruments payable on demand. A promissory note or bill of exchange, in which no time for payment is specified, and a cheque, are p ayable on demand. 20. Inchoate stamped instruments. Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in 2[India], and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount : provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder. 21. At sight. On presentment. Ina promissory note or bill of exchange the expressions at sight and on presentment mean on demand. The expression After sight after sight means, in a promissory note, after presentment for sight, and, in a bill of exchange,
. The expression After sight after sight means, in a promissory note, after presentment for sight, and, in a bill of exchange, after acceptance, or noth ing for non-acceptance, or protest for non -acceptance. 22. Maturity. The maturity of a promissory note or bill of exchange is the date at which it falls due. Days of grace. Every promissory note or bill of exchange which is not expressed to be payable on demand, at sight or on presentment is at maturity on the third day after the day on which it is expressed to be payable. 23. Calculating maturity of bill or note payable so many months after date or sight. In calculating the date at which a prom issary note or bill of exchange, made payable a stated number of months after date or after sight, or after a certain event, is at maturity, the period stated shall be held to terminate on the day of the month which corresponds with the day on which the in strument is dated, or presented for acceptance or sight, or noted for non -acceptance, or protested for non -acceptance, or the event happens, or, where the instrument is a bill of exchange made payable a stated number of months after sight and has been acce pted for honour, with the day on which it was so accepted. If the month in which the period would terminate has no corresponding day, the period shall be held to terminate on the last day of such month. Illustrations (a) A negotiable instrument, dated 29th January, 1878, it made payable at one month after date. The instrument is at maturity on the third day after the 28th February, 1878. (b) A negotiable instrument, dated 30th August, 1878, it made payable three months a fter date. The instrument is at maturity on the 3rd December, 1878. (c) A promissory note or bill of exchange, dated 31st August, 1878, is made payable three months after date. The instrument is at maturity on the 3rd December, 1878. 1. Ins. by Act 5 of 1914, s. 3. 2. Subs. by Act 3 of 1951, s. 3 and the Sch., for the States. 12 24. Calculating maturi ty of bill or note payable so many days after date or sight. In calculating the date at which a promissory note or bill of exchange made payable a certain number of days after date or after sight or after a certain event is at maturity, the day of the date , or of presentment for acceptance or sight, or of protest for non -acceptance, or on which the event happens, shall be excluded. 25. When day of maturity is a holiday. When the day on which a promissory note or bill of exchange is at maturity is a public h oliday, the instrument shall be deemed to be due on the next preceding, business day. Explanation. The expression public holiday includes Sundays: 1*** and any other day declared by the 2[Central Government], by notification in the Official Gazette, to be a public holiday. CHAPTER III PA RT IES T O NOT ES, BIL L S A ND CHEQUES . 26. Capacity to make, etc., promissory notes, etc. Every person capable of contracting, according to the law to which he is subject, may bind himself and be bound by the making, drawing, acceptance, indorsement, delivery and negotiation of a promissory note, bill of exchange or cheque. Minor. A minor may draw, indorse, deliver and negotiate such instrument so as to bind all parties except himself. Nothing herein contained shall be deemed to empower a corporation to make, indorse or accept such instruments except in cases in which, under the law for the time being in force, they are so empowered. 27. Agency. Every person capable of binding himself or of being bound, as mentioned in section 26, may so bind himself or be bound by a duly authorized agent acting in his name. A general authority to transact business and to receive and discharge debts does not confer upon an agent the power of accepting or indorsing bills of exchange so as to bin d his principal. An authority to draw bills of exchange does not of itself import an authority to indorse. 28. Liability of agent signing. An agent who signs his name to a promissory note, bill of exchange or cheque without indicating thereon that he signs as agent, or that he does not intend thereby to incur personal responsibility, is liable personally on the instrument, except to those who induced him to sign upon the belief that the principal only would be held liable. 29. Liability of legal representative signing. A legal representative of a deceased person who signs his name to a promissory note, bill of exchange or cheque is liable personally thereon unless he expressly limits his liability to the extent of the assets received by him as suc h. 30. Liability of drawer. The drawer of a bill of exchange or cheque is bound, in case of dishonour by the drawee or acceptor thereof, to compensate the holder, provided due notice of dishonour has been given to, or received by, the drawer as hereinafter provided. 31. Liability of drawee of cheque. The drawee of a cheque having sufficient funds of the drawer in his hands properly applicable to the payment of such cheque must pay the cheque when duly required so to do, and , in default of such payment, must compensate the drawer for any loss or damage caused by such default. 32. Liability of maker of note and acceptor of bill. In the absence of a contract to the contrary, the maker of a promissory note and the acceptor before maturity of a bill of exchan ge are bound to pay the amount thereof at maturity according to the apparent tenor of the note or acceptance respectively, and the acceptor of a bill of exchange at or after maturity is bound to pay the amount thereof to the holder on demand. In default of such payment as aforesaid, such maker or acceptor is bound to compensate any party to the note or bill for any loss or damage sustained by him and caused by such default. 1. The words New Year's day, Christmas day: if either of such days falls on a Sunday, the next following Monday: Good - Friday: omitted by Act 37 of 1955, s. 3 (w.e.f. 1 -4-1956). 2. Subs by the A.O. 1937, for L.G. 13 33. Only drawee can be acceptor except in need or for honour. No person except the d rawee of a bill exchange, or all or some of several drawees, or a person named therein as a drawee in case of need, or an acceptor for honour, can bind himself by an acceptance. 34. Acceptance by several drawees not partners. Where there are several drawee s of a bill of exchange who are not partners, each of them can accept it for himself, but none of them can accept it for another without his authority. 35. Liability of indorser. In the absence of a contract to the contrary, whoever indorses and delivers a negotiable instrument before maturity without, in such it indorsement, expressly excluding or making conditional his own liability, is bound thereby to every subsequent holder, in c ase of dishonour by the drawee, acceptor or maker, to compensate such holder for any loss or damage caused to him by such dishonour, provided due notice of dishonour has been given to, or received by, such indorser as hereinafter provided. Every indorser a fter dishonour is liable as upon an instrument payable on demand. 36. Liability of prior parties to holder in due course. Every prior party to a negotiable instrument is liable thereon to a holder in due course until the instrument is duly satisfied. 37. Maker, drawer and acceptor principals. The maker of a promissory note or cheque, the drawer of a bill of exchange until acceptance, and the acceptor are, in the absence of a contract to the contrary, respectively liable thereon as principal debtors, and the other parties thereto are liable thereon as sureties for the maker, drawer or acceptor, as the case may be. 38. Prior party a principal in respect of each subsequent party. As between the parties so liable as sureties, each prior party is, in the absence of a contract to the contrary, also liable thereon as a principal debtor in respect of each subsequent party. Illustration A draws a bill payable to his own order on B, who accepts. A afterwards indorses the bill to C, C to D, and D to E. As between E and B, B is the principal debtor, and A, C and D are his sureties. As between E and A, A is the principal debtor, and C and D are his sureties. As between E and C, C is the principal debtor and D is his surety. 39. Suretyship. When the holder of an accepted bi ll of exchange enters into any contract with the acceptor which, under section 134 or 135 of the Indian Contract Act, 1872 (9 of 1872), would discharge the other parties, the holder may expressly reserve his right to charge the other parties, and in such c ase they are not discharged. 40. Discharge of indorser's liability. Where the holder of a negotiable instrument, without the consent of the indorser, destroys or impairs the indorser s remedy against a prior party, the indorser is discharged from liability to the holder to the same extent as if the instrument had been paid at maturity. Illustration A is the holder of a bill of exchange made payable to the order of B, which contains the following indorsements in blank: First indorsement, B. Second indorsement, Peter Williams. Third indorsement, Wright & Co. Fourth indorsement. John Rozario. This bill A puts in suit against John Rozario and strikes out, without John Rozario's consent, the indorsements by Peter Williams and Wright & Co. A is no t entitled to recover anything from John Rozario. 41. Acceptor bound, although, indorsement forged. An acceptor of a bill of exchange already indorsed is not relieved from liability by reason that such indorsement is forged, if he knew or had reason to bel ieve the indorsement to be forged when he accepted the bill. 42. Acceptance of bill drawn in fictitious name. An acceptor of a bill of exchange drawn in a fictitious name and payable to the drawer's order is not, by reaso n that such name is fictitious, rel ieved from liability to any holder in due course claiming under an indorsement by the same hand as the drawer's signature, and purporting to be made by the drawer. 14 43. Negotiable instrument made, etc., without consideration. A negotiable instrument made, drawn, accepted, indorsed or transferred without consideration, or for a consideration which fails, creates no obligation of payment between the parties to the transaction. But if any such party has transferred the instrument with or without indorsement to a holder for consideration, such holder, and every subsequent holder deriving title from him, may recover the amount due on such instrument from the transferor for consideration or any prior party thereto. Exception I.No party for whose accommodation a n egotiable instrument has been made, drawn, accepted or indorsed can, if he have paid the amount thereof, recover thereon such amount from any person who became a party to such instrument for his accommodation. Exception II.No party to the instrument who has induced any other party to make, draw, accept, indorse or transfer the same to him for a consideration which he has failed to pay or perform in full shall recover thereon an amount exceeding the value of the consideration (if any) which he has actually paid or performed. 44. Partial absence or failure of money -consideration. When the consideration for which a person signed a promissory note, bill of exchange or cheque consisted of money, and was originally absent in part or has subsequently failed in pa rt, the sum which a holder standing in immediate relation with such signer is entitled to receive from him is proportionally reduced. Explanation. The drawer of a bill of exchange stands in immediate relation with the acceptor. The maker of a promissory no te, bill of exchange or cheque stands in immediate relation with the payee, and the indorser with his indorsee. Other signers may by agreement stand in immediate relation with a holder. Illustration A draws a bill on B for Rs. 500 payable to the order of A, B accepts the bill, but subsequently dishonours , it by non-payment. A sues B on the bill, B proves that it was accepted for value as to Rs. 400, and as an accommodation to the plaintiff as to the r esidue. A can only recover Rs. 400. 45. Partial failure of consideration not consisting of money .Where a part of the consideration for which a person signed a promissory note, bill of exchange or cheque, though not consisting of money, is ascertainable in money without collateral enquiry, and there has been a failure of that part, the sum which a holder standing in immediate relation with such signer is entitled to receive from him is proportionally reduced. 1[45A. Holder's right to duplicate of lost bill .Where a bill of exchange has been lost before it is over-due, the person who was the holder of it may apply to the drawer to give him another bill of the same tenor, giving security to the drawer, if required, to indemnify him against all persons whatever in case the bill alleged to have been lost shall be found again. If the drawer on request as aforesaid refuses to give such duplicate bill, he may be compelled to do so.] CHAPTER IV OF NEGOTIATION 46. Delivery. The making, acceptance or indorsement of a p romissory note, bill of exchange or cheque is completed by delivery, actual or constructive. As between parties standing in immediate relation , delivery to be effectual must be made by the party making, accepting or indorsing the instrument, or by a person authorized by him in that behalf. As between such parties and any holder of the instrument other than a holder in due course, it may be shown that the instrument was delivered conditionally or for a special purpose only, and not for the purpose of transfe rring absolutely the property therein. A promissory note, bill of exchange or cheque payable to bearer is negotiable by the delivery thereof. A promissory note, bill of exchange or cheque payable to order is negotiable by the holder by indorsement and deli very thereof. 1. Ins. by Act 2 of 1885, s. 3 . 15 47. Negotiation by delivery. Subject to the provisions of section 58, a promissory note, bill of exchange or cheque payable to bearer is negotiable by delivery thereof. Exception .A promissory note, bill of exchange or cheque delivered on con dition that it is not to take effect except in a certain event is not negotiable (except in the
of exchange or cheque delivered on con dition that it is not to take effect except in a certain event is not negotiable (except in the hands of a holder for value without notice of the condition) unless such event happens. Illustrations (a) A, the holder of a negotiable instrument payable to be arer, delivers it to B's agent to keep for B. The instrument has been negotiated. (b) A, the holder of a negotiable instrument payable to bearer, which is in the hands of A's banker, who is at the time the banker of B, directs the banker to transfer the in strument to B's credit in the banker's account with B. The banker does so, and accordingly now possesses the instrument as B's agent. The instrument has been negotiated, and B has become the holder of it. 48. Negotiation by indorsement. Subject to the prov isions of section 58, a promissory note, bill of exchange or cheque 1[payable to order], is negotiable by the holder by indorsement and delivery thereof. 49. Conversion of indorsement in blank into indorsement in full. The holder of a negotiable instrument indorsed in blank may, without signing his own name, by writing above the indorser s signature a direction to pay to any other person as indorsee, convert the indorsement in blank into an indorsement in full; and the h older does not thereby incur the responsibility of an indorser. 50. Effect of indorsement. The indorsement of a negotiable instrument followed by delivery transfers to the indorsee the property therein with the right of further negotiation; but the indorsement may, by express words, restrict or exclude such right, or may merely constitute the indorsee an agent to indorse the instrument, or to receive its contents for the indorser, o r for some other specified person. Illustrations B signs the following indorsements on different negotiable instruments payable to bearer. (a) Pay the contents to C only. (b) Pay C for my use. (c) Pay C or order for the account of B. (d) the within must be credited to C. These indorsements exclude the right of further negotiation by C. (e) Pay C. (f) Pay C value in account with the Oriental Bank. (g) Pay the contents to C, being part of the c onsideration in a certain deed of assignment executed by C to the indorser and others. These indorsements do not exclude the right of further negotiation by C. 51. Who may negotiate. Every sole maker, drawer, payee or indorsee, or all of several joint make rs, drawers, payees or indorsees, of a negotiable instrument may, if the negotiability of such instrument has not been restricted or excluded as mentioned in section 50, indorse and negotiate the same. Explanation .Nothing in this section enables a maker or drawer to indorse or negotiate an instrument, unless he is in lawful possession or is holder thereof; or enables a payee or indorsee to indorse or negotiate an instrument, unless he is holder thereof. Illustration A bill is drawn payable to A or order. A indorses it to B, the indorsement not containing the words or ord er or any equivalent words. B may negotiate the instrument. 52. Indorser who excludes his own liability or makes it conditional. The indorser of a negotiable instrument may, by express words in the indorsement, exclude his own liability thereon, or make such 1. Subs. by Act 8 of 1919, s. 4, for payable to the order of a specified person, or to a specified person or order . 16 liability or the right of the indorsee to receive the amount due thereon depend upon the happening of a specified event, although such eve nt may never happen. Where an indorser so excludes his liability and afterwards becomes the holder of the instrument, all intermediate indorsers are liable to him. Illustrations (a) The indorser of a negotiable instrument sign; his name adding the words Without recourse . Upon this indorsement he incurs no liability. (b) A is the payee and holder of a negotiable instrument. Excluding personal liability by an indorsement without recourse he transfers the instrument to B, and B indorses it to C, who indorses it to A. A is not only reinstated in his former rights, but has the rights of an indorsee against B and C. 53. Holder deriving title from holder in due course .A holder of a negotiable instrument who derives title from a holder in due course has the rights thereon of that holder in due course. 54. Instrument indorsed in blank. Subject to the provisions hereinafter contained as to crossed cheques, a negotiable instrument indorsed in blank is payable to the bearer thereof even although originally payable to order . 55. Conversion of indorsement in blank into indorsement in full. If a negotiable instrument, after having been indorsed in blank, is indorsed in full, the amount of it cannot be claimed from the indorser in full, except by the person to whom it has been indorsed in full, or by one who derives title through such person. 56. Indorsement for part of sum due. No writing on a negotiable instrument is valid for the purpose of negotiation if such writing purports to transfer only a part of the amount appearing to be due on the instrument; but where such amount has been partly paid, a note to that effect may be indorsed on the instrument, which may then be negotiated for the balance. 57. Legal representative cannot by delivery only negotiate instrument indorsed by deceased. The legal representative of a deceased person c annot negotiate by delivery only a promissory note, bill of exchange or cheque payable to order and indorsed by the deceased but not delivered. 58. Instrument obtained by unlawful means or for unlawful consideration .When a negotiable instrument has been lost, or has been obtained from any maker, acceptor or holder thereof by means of an offence or fraud, or for an unlawful consideration, no possessor or indorsee who claims through the person who found or so obtained t he instrument is entitled to receive the amount due thereon from such maker, acceptor or holder, or from any party prior to such holder, unless such possessor or indorsee is, or some person through whom he claims was, a holder thereof in due course. 59. Instrument acquired after dishonour or when overdue .The holder of a negotiable instrument, who has acquired it after dishonour, whether by non -acceptance or non -payment, with notice thereof, or after maturity, has only, as against the other parties, the rig hts thereon of his transferor : Accommodation note or bill .Provided that any person who, in good faith and for consideration, becomes the holder, after maturity, of a promissory note or bill of exchange made, drawn or accepted without consideration, for th e purpose of enabling some party thereto to raise money thereon, may recover the amount of the note or bill from any prior party. Illustration The acceptor of a bill of exchange, when he accepted it, deposited with the drawer certain goods as a collateral security for the payment of the bill, with power to the drawer to sell the goods and apply the proceeds in discharge of the bill if it wer e not paid at maturity. The bill not having been paid at maturity, the drawer sold the goods and retained the proceeds , but indorsed the bill to A. A's title is subject to the same objection as the drawer's title. 60. Instrument negotiable till payment or satisfaction .A negotiable instrument may be negotiated (except by the maker, drawee or acceptor after maturity) until payment or satisfaction thereof by the maker, drawee or acceptor at or after maturity, but not after such payment or satisfaction. 17 C H A P T E R V O F P R E S E N T M E N T 61. Presentment for acceptance. A bill of exchange payable after sight must, if no time or place is specified therein for presentment, be presented to the drawee thereof for acceptance, if he can, after reasonable search, be found, by a person entitled to demand acceptance, within a reasonable time after it is drawn, and in busines s hours on a business day. In default of such presentment, no party thereto is liable thereon to the person making such default. If the drawee cannot, after reasonable search, be found, the bill is disho noured. If the bill is directed to the drawee at a pa rticular place, it must be presented at that place; and if at the due date for presentment he cannot, after reasonable search , be found there, the till is dishonoured . 1[Where authorized by agreement or usage, a presentment through the post office by means of a registered letter is sufficient.] 62. Presentment of promissory note for sight. A promissory note, payable at a certain period after sight, must be presented to the maker thereof for sight (if he can after reasonable search be found) by a person entitled to demand payment, within a reasonable time after it is made and in business hours on a business day. In default of such presentment, no party thereto is liable thereon to the person making such default. 63. Drawees time for deliberation .The hol der must, if so required by the drawee of a bill of exchange presented to him for acceptance, allow the drawee 2[forty -eight] hours (exclusive of public holidays) to consider whether he will accept it. 64. Presentment for payment .3[(1)] Promissory notes, bills of exchange and cheques must be presented for payment to the maker, acceptor or drawee thereof respectively, by or on behalf of the holder as hereinafter provided. In default of such presentment, t he other parties there to are not liable thereon to such holder. 1[Where authorized by agreement or usage, a presentment through the post office by means of a registered letter is sufficient.] Exception .Where a promissory note is payable on demand and is not payable at a specified place, no presentment is necessary in order to charge the maker thereof. 4[(2) Notwithstanding anything contained in section 6, where an electronic image of a truncated cheque is presented for payment, the drawee bank is entitled to demand any further information regarding the tru ncated cheque from the bank holding the truncated cheque in case of any reasonable suspicion about the genuineness of the apparent tenor of instrument, and if the suspicion is that of any fraud, forgery, tampering or destruction of the instrument, it is en titled to further demand the presentment of the truncated cheque itself for verification: Provided that the truncated cheque so demanded by the drawee bank shall be retained by it, if the payment is made accordingly.] 65. Hours for presentment Presentment for payment must be made during the usual hours of business and, if at a banker's within banking hours. 66. Presentment for payment of instrument payable after date or sight A promissory note or bill of exchange, made payable at a specified period after da te or sight thereof, must be presented for payment at maturity. 67. Presentment for payment of promissory note payable by instalments. A promissory note payable by instalments must be presented for payment on the third day after the date fixed for payment of each instalment; and non -payment on such presentment has the same effect as non -payment of a note at maturity. 1. Added by Act 2 of 1885, s. 4. 2. Subs. by Act 12 of 1921, s. 2 , for twenty -four. 3. Section 64 renumbered as sub -section ( 1) thereof by Act 55 of 2002, s. 3 (w.e.f. 6 -2-2003). 4. Ins. by s. 3 , ibid, (w.e.f. 6 -2-2003). 18 68. Presentment for payment of instrument payable at specified place and not elsewhere. A promissory note, bill of exchange or cheque made, d rawn or accepted payable at a specified place and not elsewhere must, in order to charge any party thereto, be presented for payment at that place. 69. Instrument payable at specified place. A promissory note or bill of exchange made, drawn or accepted pay able at a specified place must, in order to charge the maker or drawer thereof, be presented for payment at that place. 70. Presentment where no exclusive place specified. A promissory note or bill of exchange, not made payable as mentioned in sections 68 and 69, must be presented for payment at the place of business (if any), or at the usual residence, of the maker, drawee or acceptor thereof, as the case may be. 71. Presentment when maker, etc., has no known place of business or residence. If the maker, drawee or acceptor of a negotiable instrument has no known place of business or fixed residence, and no place is specified in the instrument for presentment for acceptance or payment such presentment may be made to him in person wherever he can be found. 72. Presentment of cheque to charge drawer. 1[Subject to the provisions of section 84,] a cheque must, in order to charge the drawer , be presented at the bank upon which it is drawn before the relation between the drawer and his banker has been altered to the prejudice of the drawer. 73. Presentment of cheque to charge any other person. A cheque must, in order to charge any person excep t the drawer, be presented within a reasonable time after delivery thereof by such person. 74. Presentment of instrument payable on demand. Subject to the provisions of section 31, a negotiable instrument payable on demand must be presented for payment wit hin a reasonable time after it is received by the holder. 75. Presentment by or to agent, representative of deceased, or assignee of insolvent. Presentment for acceptance or payment may be made to the duly authorized agent of the drawee, maker or accept or, as the case may be, or, where the drawee, maker or acceptor has died, to his legal representative, or, where he has been declared an insolvent, to his assignee. 2[75A. Excuse for delay in presentment for acceptance or payment Delay in presentment 3[for acceptance or payment] is excused if the delay is caused by circumstances beyond the control of the holder, and not imputable to his default, misconduct or negligence. When the cause of delay ceases to operate, presentment must be made within a reasonable time.] 76. When presentment unnecessary. No presentment for payment is necessary, and the instrument is dishonoured at the due date for presentment, in any of the following cases: (a) if the maker, drawee or acceptor intentionally prevents the presentmen t of the instrument, or, if the instrument being payable at his place of business,
or acceptor intentionally prevents the presentmen t of the instrument, or, if the instrument being payable at his place of business, he closes such place on a business day during the usual business hours, or, if the instrument being payable at some other specified place, neither he nor any person authoriz ed to pay it attends at such place during the usual business hours, or, if the instrument not being payable at any specified place, he cannot after due search be found; (b) as against any party sought to be charged therewith, if he has engaged to pay notwi thstanding non-presentment; (c) as against any party if, after maturity, with knowledge that the instrument has not been presented he makes a part payment on account of the amount due on the instrument, or promises to pay the amount due thereon in whole o r in part, 1. Ins. by Act 6 of 1897, s. 2. 2. Ins. by Act 25 of 1920 , s. 2. 3. Subs. by Act 12 of 1921, s. 3, for for payment. 19 or otherwise waives his right to take advantage of any default in presentment for payment; (d) as against the drawer, if the drawer could not suffer damage from the want of such presentment. 77. Liability of banker for negligently dealing with bill presented for payment. When a bill of exchange, accepted payable at a specified bank, has been duly presented there for payment and dishonoured, if the banker so negligently or improperly keeps, deals with or delivers back such bill as to cause loss to the holder, he must compensate the holder for such loss. CHAPTER VI OF PAYMENTAND INTEREST 78. To whom payment should be made. Subject to the provisions of section 82, clause (c), payment of the amount due on a promissory note, bill of exchange or cheque must, in order to discharge the maker or acceptor, be made to the holder of the instrument. 79. Interest when rate specified. When interest at a specified rate is expressly made payabl e on a promissory note or bill of exchange, interest shall be calculated at the rate specified, on the amount of the principal money due thereon, from the date of the instrument, until tender or realization of such amount, or until such date after the inst itution of a suit to recover such amount as the Court directs. 80. Interest when no rate specified. When no rate of interest is specified in the instrument, interest on the amount due thereon shall, 1[notwithstanding any agreement relating to interest bet ween any parties to the instrument], be calculated at the rate of 2[eighteen per centum] per annum, from the date at which the same ought to have been paid by the party charged, until tender or realization of the amount due thereon, or until such date afte r the institution of a suit to recover such a mount as the Court directs. Explanation. When the party charged is the indorser of an instrument dishonoured by non -payment , he is liable to pay interest only from the time that he receives notice of the dishon our. 81. Delivery of instrument on payment or indemnity in case of loss. 3[(1)] Any person liable to pay, and called upon by the holder thereof to pay, the amount due on a promissory note, bill of exchange or cheque is before payment entitled to have it shown, and is on payment entitled to have it delivered up, to him, or if the instrument is lost or cannot be produced, to be indemnified against any further claim thereon against him. 4[(2) Where the cheque is an electronic image of a truncated cheque, eve n after the payment the banker who received the payment shall be entitled to retain the truncated cheque. (3) A certificate issued on the foot of the printout of the electronic image of a truncated cheque by the banker who paid the instrument, shall be prima facie proof of such payment.] CHAPTER VII OF DISCHARGE FROM LIABILITY ON NOTES , BILLS AND CHEQUES 82. Discharge from liability. The maker, acceptor or indorser respectively of a negotiable instrument is discharged from liability thereon (a) by cancellation. to a holder thereof who cancels such acceptor's or indorsers name with intent to discharge him, and to all parties claiming under such holder; (b) by release. to a holder thereof who otherwise discharges such maker, acceptor or indorser, and to all parties deriving title under such holder after notice of such discharge; (c) by payment. to all parties thereto, if the instrument is payable to bearer, or has been indorsed in blank, and such maker, acceptor or indorser makes payment in due cours e of the amount due thereon. 1. Subs. by Act 30 of 1926, s. 2, for except in cases provided for by the Code of Civil Procedure, s . 532. 2. Subs. by Act 66 of 1988, s. 2, for six per centum (w.e.f. 30 -12-1988). 3. Section 81 r e-numbered as sub -section ( 1) thereo f by Act 55 of 2002, s. 4 (w.e.f. 6 -2-2003). 4. Ins. by s. 4, ibid. (w.e.f. 6 -2-2003). 20 83. Discharge by allowing drawee more than forty -eight hours to accept. If the holder of a bill of exchange allows the drawee more than 1[forty -eight] hours, exclusive of public holidays, to consider whether he will accept the same, all previous parties not consenting to such allowance are thereby discharge from liability to such holder. 2[84. When cheque not duly presented and drawer damaged thereby .(1) Where a cheque is not presented for payment within a reasonable time of its issue, and the drawer or person on whose account it is drawn had the right, at the time when presentment ought to have been made, as between himself and the banker, to have the cheque paid and suffers actual damage through the delay, he is discharged t o the extent of such damage, that is to say, to the extent to which such drawer or person is a creditor of the banker to a large amount than he would have been if such cheque had been paid. (2) In determining what is a reasonble time, regard shall be had t o the nature of the instrument, the usage of trade and of bankers, and the facts of the particular case. (3) The holder of the cheque as to which such drawer of person is so discharged shall be a creditor, in lieu of such drawer or person, of such banker to the extent of such discharge and entitled to recover the amount from him. Illustrations (a) A draws a cheque for Rs. 1,000, and, when the cheque ought to be presented, has funds at the bank to meet it. The bank fails before the cheque is presented. The drawer is discharged, but the holder can prove against the bank for the amount of the cheque. (b) A draws a cheque at Umballa on a bank in Calcutta. The bank fails before the cheque could be presented in ordinary course. A is not discharged, for he has not suffered actual damage through any delay in presenting the cheque.] 85. Cheque payable to order. 3[(1)] Where a cheque payable to order purports to be endorsed by or on behalf of the payee, the drawee is discharged by payment in due course. 4[(2) Where a cheque is originally expressed to be payable to bearer, the drawee is discharged by payment in due course to the bearer thereof, notwithstanding any endorsement whether in full or in blank appearing thereon, and notwithstanding that any such endorsement pu rports to restrict or exclude further negotiation.] 5[85A. Drafts drawn by one branch of a bank on another payable to order .where any draft, that is an order to pay money, drawn by one office of a bank upon another office of the same bank for a sum of mon ey payable to order on demand, purports to be endorsed by or on behalf of the payee, the bank is discharged by payment in due course.] 86. Parties not consenting discharged by qualified or limited acceptance. If the holder of a bill of exchange acquiesces in a qualified acceptance, or one limited to part of the sum mentioned in the bill, or which substitutes a different place or time for payment, or which, where the drawees are not partners, is not signed by all the drawees, all previous p arties whose conse nt is not obtained to such acceptance are discharged as against the holder and those claiming under him, unless on notice given by the holder they assent to such acceptance. Explanation. An acceptance is qualified (a) where it is conditional, declaring the payment to be dependent on the happening of an event therein stated; (b) where it undertakes the payment of part only of the sum ordered to be paid; 1. Subs. by Act 12 of 1921, s. 2, for twenty -four. 2. Subs. by Act 6 of 1897, s. 3, for s. 84. 3. S. 85 re -numbered as sub -section (1) thereof by Act 17 of 1934, s. 2. 4. Ins. by s. 2 , ibid. 5. Ins. by Act 25 of 1930, s. 2. 21 (c) where no place of payment being specified on the order, it undertakes the payment at a specified place , and not otherwise or elsewhere; or where, a place of payment being specified in the order, it undertakes the payment at some other place and not otherwise or elsewhere; (d) where it undertakes the payment at a time other than that at which under the orde r it would be legally due. 87. Effect of material alteration. Any material alteration of a negotiable instrument renders the same void as against anyone who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties; Alteration by indorsee. And any such alteration, if made by an indorsee, discharges his indorser from all liability to him in respect of the consideration thereof. The provisions of this section are subject to those of sections 20, 49, 86 and 125. 88. Acceptor or indorser bound notwithstanding previous alteration. An acceptor or indorser of a negotiable instrument is bound by his acceptance or indorsement notwithstanding any previous alteration of the instrument. 89. Payment of instrument on which alteration is not apparent. 1[(1)] Where a promissory note, bill of exchange or cheque has been materially altered but does not appear to have been so altered, or where a cheque is presented for payment which does not at the time of presentation appear to be crossed or to have had a crossing which has been obliterated, payment thereof by a person or banker liable to pay, and paying the same according to the apparent tenor thereof at the time of payment and otherwise in due course, shall discharge such pers on or banker from all liability thereon; and such payment shall not be questioned by reason of the instrument having been altered or the cheque crossed. 2[(2) Where the cheque is an electronic image of a truncated cheque, any difference in apparent tenor of such electronic image and the truncated cheque shall be a material alteration and it shall be the duty of the bank or the clearing house, as the case may be, to ensure the exactness of the apparent tenor of electronic image of the truncated cheque while truncating and transmitting the image. (3) Any bank or a clearing house which receives a transmitted electronic image of a truncated cheque, shall verify from the party who transmitted the image to it, that the image so transmitted to it and received by it, is exactly the same.] 90. Extinguishment of rights of action on bill in acceptor's hands. If a bill of exchange which has been negotiated is, at or after mat urity, held by the acceptor in his own right, all rights of action thereon are extinguished. CHAPTER VIII OF NOTIC E OF DISHONOUR 91. Dishonour by non -acceptance. A bill of exchange is said to be dishonoured by non -acceptance when the drawee, or one of several drawees not being partners, makes default in acceptance upon being duly required to accept the bill, or where presentment is excused and the bill is not accepted. Where the drawee is incompetent to cont ract, or the acceptance is qualified the bill may be treated as dishonoured. 92. Dishonour by non -payment. A promissory note, bill of exchange or cheque is said to be dishonoured by non -payment when the maker of the note, acceptor of the bill or drawee of the cheque makes default in payment upon being duly required to pay the same. 93. By and to whom notice should be given .When a promissory note, bill of exchange or cheque is dishonoured by non -acceptance or non -payment, the holder thereof, or some party thereto who remains 1. Section 89 r e-numbered as sub -section ( 1) thereof by Act 55 of 20 02, s. 5 (w.e.f. 6 -2-2003). 2. Ins. by , s. 5, ibid, (w.e.f. 6-2-2003). 22 liable thereon, must give notice that the instrument has been so dishonoured to all other parties whom the holder seeks to make severally liable thereon, and to some one of several parties whom he seeks to make jointly l iable thereon. Nothing in this section renders it necessary to give n otice to the maker of the dishonoured promissory note or the drawee or acceptor of the dishonoured bill of exchange or cheque. 94. Mode in which notice may be given. Notice of dishonour m ay be given to a duly authorized agent of the person to whom it is required to be given, or, where h e has died, to his legal representative, or, where he has been declared an insolvent, to his assignee; may be oral or written; may, if written, be sent by p ost; and may be in any form; but it must inform the party to whom it is given, either in express terms or by reasonable intendment, that the instrument has been dishonoured, and in what way, and that he will be held liable thereon; and it must be given wit hin a reasonable time after dishonour, at the place of business or (in case such party has no place of business) at the residence of the party for whom it is intended. If the notice is duly directed and sent by post and miscarries, such miscarriage does not render the notice invalid. 95. Party receiving must transmit notice
sent by post and miscarries, such miscarriage does not render the notice invalid. 95. Party receiving must transmit notice of dishonour. Any party receiving notice of dishonour must, in order to render any prior party liable to himself, give notice of dishonour to such party within a reasonable time, unless such party otherwise receives due notice as provided by section 93. 96. Agent for presentment. When the instrument is deposited with an agent for presentment, the agent is entitled to the same time to give no tice to his principal as if he were the holder giving notice of dishonour, and the principal is entitled to a further like period to give notice of dishonour. 97. When party to whom notice given is dead. when the party to whom notice of dishonour is dispat ched is dead, but the party dispatching the notice is ignorant of his death, the notice is sufficient. 98. When notice of dishonour is unnecessary. No notice of dishonour is necessary (a) when it is dispensed with by the party entitled thereto; (b) in or der to charge the drawer , when he has countermanded payment; (c)when the party charged could not suffer damage for want of notice; (d) when the party entitled to notice cannot after due search be found; or the party bound to give notice is, for any other reason, unable without any fault of his own to give it; (e) to charge the drawers, when the acceptor is also a drawer; (f) in the case of a promissory note which is not negotiable; (g) when the party entitled to notice, knowing the facts, promises uncondit ionally to pay the amount due on the instrument. CHAPTER IX O F N O T I NG A N D P R O T E S T 99. Noting. When a promissory note or bill of exchange has been dishonoured by non -acceptance or non -payment, the holder may cause such dishonour to be not ed by a notary public upon the instrument, or upon a paper attached thereto, or partly upon each. Such note must be made within a reasonable time after dishonour, and must specify the date of dishonour, the reason, if any, assigned for such dishonour, or, if the instrument has not been expressly dishonoured, the reason why the holder treats it as dishonoured, and the notary's charges. 100. Protest. When a promissory note or bill of exchange has been dishonoured by non -acceptance or non -payment, the holder may, within a reasonable time, cause such dishonour to be noted and certified by a notary public. Such certificate is called a protest. Protest for better security. When the acceptor of a bill of exchange has b ecome insolvent, or his credit has been publicly impeached, before the maturity of the bill, the holder may, within a reasonable time, cause a notary public to demand better security of the acceptor, and on its being 23 refused may, within a reasonable time, cause such facts to be noted and certified as aforesaid. Such certificate is called a protest for better security. 101. Contents of protest. A protest under section 100 must contain (a) either the instrument itself, or a literal transcript of the instrument and of everything written or printed thereupon; (b) the name of the person for whom and against whom the instrument has been protested; (c) a statement that payment or acceptance, or better security, as the case may be, has been demanded of such person by the notary public ; the terms of his answer, if any, or a statement that he gave no answer , or that he could not be found; (d) when the note or bill has been dishonoured, the place and time of dishonour, and, when better security has been refused , the place and time of refusal; (e) the subscription of the notary public making the protest; (f) in the event of an acceptance for honour or of a payment for honour, the name of the person by whom, of the person for whom, and the manner i n which, such ac ceptance or payment was offered and effected. 1[A notary public may make the demand mentioned in clause (c) of this section either in person or by his clerk or, where authorized by agreement or usage, by registered letter.] 102. Notice of protest .When a p romissory note or bill of exchange is required by law to be protested, notice of such protest must be given instead of notice of dishonour, in the same manner and subject to the same conditions; but the notice may be given by the notary public who makes th e protest. 103. Protest for non -payment after dishonour by non -acceptance. All bills of exchange drawn payable at some other place than the place mentioned as the residence of the drawee, and which are dishonoured by non -acceptance, may, without further presentment to the drawee, be protested for non - payment , in the place specified for payment, unless paid before or at maturity. 104. Protest of foreign bills. Foreign bills of exchange must be protested for dis honou r when such protest is required by the law of the place where they are drawn. 2[104A. When noting equivalent to protest. For the purposes of this Act, where a bill of note is required to be protested within a specified time or before some further proceedin g is taken it is sufficient that the bill has been noted for protest before the expiration of the specified time or the taking of the proceeding; and, the formal protest may be extended at any time thereafter as of the date of the noting.] CHAPTER X OF R E A S O N A B L E T I M E 105. Reasonable time. In determining what is a reasonable time for presentment for acceptance or payment, for giving notice of dishonour and for noting, regard shall be had to the nature of the instrument and the usual cour se of dealing with respect to similar instruments; and, in calculating such time, public holidays shall be excluded. 106. Reasonable time of giving notice of dishonour. If the holder and the party to whom notice of dishonour is given carry on business or l ive (as the case may be) in different places, such notice is given within a reasonable time if it is dispatched by the next post or on the day next after the day of dishonour. If the said parties carry on business or live in the same place, such notice is given within a reasonable time if it is dispatched in time to reach its destination on the day next after the day of dishonour. 107. Reasonable time for transmitting such notice. A party receiving notice of dishonour, who seeks to enforce his right against a prior party, transmits the notice within a reasonable time if he 1. Ins. by Act 2 of 1885, s. 5. 2. Ins. by s. 6, ibid. 24 transmits it within the same time after its receipt as he would have had to give notice if he had been the holder. CHAPTER XI OF ACCEPTANCE AND PAYMENT FOR HONOUR AND REFERENCE IN CASE OF NEED 108. Acceptance for honour. When a bill of exchange has been noted or protested for non - acceptance or for better security, any person not being a party already liable thereon may, with the consent of the holder, by writing on the bill, accept the sam e for the honour of any party thereto. 1* 109. How acceptance for honour must be made. A person desiring to accept for honour must, 2[by writing on the bill under his hand,] declare that he accepts under protest the protested bill for the honour of the drawer or of a particular indorser whom he names, or generally for honour. 3* 110. Acceptance not specifying for whose honour it is made. Where the acceptance does not express for whose honour it is made it shall be deemed to be made for the honour of the drawer. 111. Liability of acceptor for honour. An acceptor for honour binds himself to all parties subsequent to the party for whose honour he accepts to pay the amount of the bill if the drawee do not; and such party and all prior parties are liab le in their respective capacities to compensate the acceptor for honour for all loss or damage sustained by him in consequence of such acceptance. But an acceptor for honour is not liable to the holder of the bill unless it is presented, or (in case the address given by such acceptor on the bill is a place other than the place where the bill is made payable) forwarded for presentment, not later than the day next after the day of its maturity. 112. When acceptor for honour may be charged. An acceptor for hon our cannot be charged unless the bill has at its maturity been presented to the drawee for payment, and has been dishonoured by him, and noted or protested for such dishonour. 113. Payment for honour .When a bill of exchange has been noted or protested for non-payment, any person may pay the same for the honour of any party liable to pay the same : provided that the person so paying 4[or his agent in that behalf] has previously declared before a notary public the party for whose honour he pays, and that such declaration has been recorded by such notary public. 114. Right of payer for honour .Any person so paying is entitled to all the rights in respect of the bill, of the holder at the time of such payment, and may recover from the party for whose honour he pays all sums so paid, with interest thereon and with all expenses properly incurred in making such payment. 115. Drawee in case of need .Where a drawee in case of need is named in a bill of exchange, or in any indorsement thereon, the bill is not dish onoured until it has been dishonoured by such drawee. 116. Acceptance and payment without protest .A drawee in case of need may accept and pay the bill of exchange without previous protest. CHAPTER XII O F C O M P E N S A T I O N 117. Rules as to compen sation .The compensation payable in case of dishonour of a promissory note, bill of exchange or cheque, by any party liable to the holder or any indorsee, shall 5*** be determined by the following rules: (a) the holder is entitled to the amount due upon the instrument together with the expenses properly incurred in presenting, noting and protesting it; 1. The second sentence rep. by Act 2 of 1885, s. 7. 2. Subs. by s. 8, ibid., for in the presence of a notary public, subscribe the bill with his own hand, and. 3. The words and such declaration must be recorded by the notary in his register rep. by s. 8, ibid. 4. Ins. by Act 2 of 1885, s. 9. 5. The brackets, words and figures (except in cases provided for by the Code of Civil Procedure, s. 532) omitted by Act 30 o f 1926 , s. 3. 25 (b) when the person charged resides at a place different from that at which the instrument was payable, the holder is entitled to receive such sum at the c urrent rate of exchange between the two places; (c) an indorser who, being liable, has paid the amount due on the same is entitled to the amount so paid with interest at 1[eighteen per centum] per annum from the date of payment until tender or realization thereof, together with all expenses caused by the dishonour and payment; (d) when the person charged and such indorser reside at different places, the indorser is entitled to receive such sum at the current rate of exchange between the two places; (e) the party entitled to compensation may draw a bill upon the party liable to compensate him, payable at sight or on demand, for the amount due to him, together with all expenses properly incurred by him. Such bill must be accompanied by the instrument dis honoured and the protest thereof (if any). If such bill is dishonoured, the party dishonouring the same is liable to make compensation thereof in the same manner as in the case of the original bill. CHAPTER XIII S P E C I A L R U L E S O F E V I D E N C E 118. Presumptions as to negotiable instruments. Until the contrary is proved, the following presumptions shall be made: (a) of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; (b) as to date: that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance: that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer: that every transfer of a negotiable instrument was made before its naturity; (e) as to order of indorsements: that the indorsements appearing upon a negotiable instrument were made in the order in which they appear then on; (f) as to stamp: that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course: that the ho lder of a negotiable instrument is a holder in due course: provided that, where the instrut ment has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or a cceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him. 119. Presumption on proof of protest. Ina suit upon an instrument which has been dishonoured, the Court shall, on proof of the protest, presume the fact of dishonour, unless and until such fact is disproved. 120. Estoppel against denying original validity of instrument. No maker of a promissory note, and no drawer of a bill of exchange or cheque, and no acceptor of a bill of exchange for the honour of the drawer shall, in a suit thereon by a holder in due course, be permitted to deny the validity of the instrument as origina lly made or drawn. 121. Estoppel against denying capacity of payee to indorse. No maker of a promissory note and no acceptor of a bill of exchange 2[payable to order] shall, i n a suit thereon by a holder in due course, be permitted to deny the payee's capacity, at the date of the note or bill, to indorse the same. 1. Subs. by Act 66 of 1988, s. 3, for six per centum (w.e.f . 30 - 12 - 1988 ). 2. Subs. by Act 8 of 1919, s. 5, for payable to, or to the order- of, a specified person
. by Act 8 of 1919, s. 5, for payable to, or to the order- of, a specified person. 26 122. Estoppel against denying signature or capacity of prior party. No indorser of a negotiable instrument shall, in a suit thereon by a subsequent holder, be permitted to deny the signature o r capacity to contract of any prior party to the instrument. CHAPTER XIV O F CROSSED C H E Q U E S 123. Cheque crossed generally. Where a cheque bears across its face an addition of the words and company or any abbreviation thereof, between two parallel transverse lines, or of two parallel transverse lines simply, either with or without the words not negotiable, that addition shall be deemed a crossing, and the cheque shall be deemed to be crossed generally. 124. Cheque crossed specially. Where a cheque bears across its face an addition of the name of a banker, either with or without the words not negotiable, that addition shall be deemed a crossin g and the cheque shall be deemed to be crossed specially, and to be crossed to that banker. 125. Crossing after issue. Where a cheque is uncrossed, the holder may cross it generally or specially. Where a cheque is crossed generally, the holder may cross it specially. Where a cheque is crossed generally, or specially, the holder may add the words not negotiable. Where a cheque is crossed specially, the banker to whom it is crossed may again cross it specially to another banker, his agent, for collection. 126. Payment of cheque crossed generally. Where a cheque is crossed generally, the banker on whom it is drawn shall not pay it otherwise than to a banker. Payment of cheque crossed specially. Where a cheque is crossed specially, the banker on whom it is drawn shall not pay it otherwise than to the banker to whom it is crossed, or his agent for collecti on. 127. Payment of cheque crossed specially more than once. Where a cheque is crossed specially to more than one banker, except when crossed to an agent for the purpose of collection, the banker on whom it is drawn shall refuse payment thereof. 128. Payme nt in due course of crossed cheque. Where the banker on whom a crossed cheque is drawn has paid the same in due course, the banker paying the cheque, and (in case such cheque has come to the hands of the payee) the drawer thereof, shall respectively be ent itled to the same rights, and be placed in the same position in all respects, as they would respectively be entitled to and placed in if the amount of the cheque had been paid to and received by the true owner there of. 129. Payment of crossed cheque out of due course. Any banker paying a cheque crossed generally otherwise than to a banker, or a cheque crossed specially otherwise than to the banker to whom the same is crossed, or his agent for collection, being a banker, shall be liable to the true owner of the cheque for any loss he may sustain owing to the cheque having been so paid. 130. Cheque bearing not negotiable. A person taking a cheque crossed generally or specially, bearing in either case the words not negotiable, shall not have, and shall not be capable of giving, a better title to the cheque than that which the person from whom he took it had. 131. Non -liability of banker receiving payment of cheque. A banker who has in good faith and without negligence received payment for a customer of a cheque crossed generally or specially to himself shall not, in case the title to the cheque proves defective, incur any liability to the true owner of the cheque by reason only of having received such payment. 1[Explanation 2[(I)]. A banker receives payment of a crossed cheque for a customer within the meaning of this section notwithstanding that he credits his customer s account with the amount of the cheque before receiving payment thereof.] 1. Ins. by Act 18 of 1922, s. 2. 2. Explanation re-numbered as Explanation I thereof by Act 55 of 2002, s. 6 (w.e.f. 6 -2-2003). 27 1[Explanation II.It shall be th e duty of the banker who receives payment based on an electronic image of a truncated cheque held with him, to verify the prima facie genuineness of the cheque to be truncated and any fraud, forgery or tampering apparent on the face of the instrument that can be verified with due diligence and ordinary care.] 2[131A. Application of Chapter to drafts. The provisions of this Chapter shall apply to any draft, as defined in section 85A, as if the draft were a cheque.] CHAPTER XV O F B I L L S I N S E T S 132. Set of bills. Bills of exchange may be drawn in parts, each part being numbered and containing a provision that it shall continue payable only so long as the others remain unpaid. All the parts together make a set; but the whole set constitutes only one bill, and is extinguished when one of the parts, if a separate bill, would be extinguished. Exception. When a person accepts or indorses different parts of the bill in favour of different persons, he and the subsequent endorsers of each part are liable on such part as if it were a separate bill. 133. Holder of first acquired part entitled to allAs between holders in due course of different parts of the same set, he who first acquired title to his part is entitled to the other parts and the money represen ted by the bill. CHAPTER XVI O F I N T E R N A T I O N A L LA W 134. Law governing liability of maker, acceptor or indorser of foreign instrument. In the absence of a contract to the contrary, the liability of the maker or drawer of a foreign promissory note, bill of exchange or cheque is regulated in all essential matters by the law of the place where he made the instrument, and the respective liabilit ies of the acceptor and indorser by the law of the place where the instrument is made payable. Illustration A bill of exchange was drawn by A in California, where the rate of interest is 25 per cent., and accepted by B , payable in Washington, where the rat e of interest is 6 per cent. The bill is erdorsed in 3[India], and is dishonoured. An action on the bill is brought against B in 3[India]. He is liable to pay interest at the rate of 6 per cent. only; but if A is charged as drawer, A is liable to pay inter est at the r ate of 25 per cent. 135. Law of place of payment governs dishonour. Where a promissory note, bill of exchange or cheque is made payable in a different place from that in which it is made or indorsed, the law of the place where it is made payable determines what constitutes dishonour and wh at notice of dishonour is sufficient. Illustration A bill of exchange drawn and indorsed in 3[India], but accepted payable in France, is dishonoured. The indorsee causes it to be protested for such dishonour, and gives notice thereof in accordance with the law of France, though not in accordance with the rules herein contained in respect of bills which are not foreign. The notice is sufficient. 136. Instrument made, etc., out of India , but in accordance with the law of India .If a negotiable instrument is made, drawn, accepted or indorsed 4[outside India], but in accordance with the 5[law of India], the circumstances that any agreement evidenced by such instrument is invalid according to the law of the country wherein it was entered into does not invalidate any subsequent acceptance or indor sement made thereon 6[within India]. 1. Ins. by Act 55 of 2002, s. 6 (w.e.f. 6 -2-2003). 2. Ins. by Act 33 of 1947, s. 2. 3. Subs. by Act 3 of 1951, s. 3 and the Sch edule for the States. 4. Subs. by the A.O. 1948, A.O. 1950 and the Act 3 of 1951, s. 3 and the Sch. for out of British India. 5. Subs. by s. 3, ibid., for law of British India . 6. Subs. by s. 3, ibid., for in British India. 28 137. Presumption as to foreign law. The law of any foreign country 1*** regarding promissory notes, bills of exchange and cheques shall be presumed to be the same as that of 2[India], unless and until the contrary is pr oved. 3[CHAPTER XVII OF PENALTIES IN CASE OF DISHONOUR OF CERTAIN CHEQUES FOR INSUFFICIENCY OF FUNDS IN THE ACCOUNTS 138. Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank u npaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for 4[a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Prov ided that nothing contained in this section shall apply unless (a) thecheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier ; (b) the payee or the h older in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, 5[within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation .For the purposes of this section, debt of other liability means a legally enforceable debt or other liability. 139. Presumption in favour of holder. It shall be presumed, unless the contrary is proved, that the holder of a chequ e received the cheque of the nature referred to in section13 8 for the discharge, in whole or in part, of any debt or other liability. 140. Defence which may not be allowed in any prosecution under section 138. Itshall not be a defence in a prosecution for an offence under section 138 that the drawer had no reason to believe when he issued the cheque that the cheque may be dishonoured on presentment for the reasons stated in that section. 141. Offences by companies. (1) If the person committing an offence un der section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub -section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exerci sed all due diligence to prevent the commission of such offence: 6[Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial 1. The words or the State of Jammu and Kashmir omitted by Act 62 of 1956, s. 2 and the Sch edule . 2. Subs. by the A.O. 1948, A.O. 1950 and the Act 3 of 1951, s. 3 and the Sch edule for British India. 3. Ins. by Act 66 of 1988, s, 4 (w.e.f. 1 -4-1989). 4. Subs. by Act 55 of 2002, s. 7, for certain words (w.e.f. 6 -2-2003). 5. Subs. by s. 7, ibid., for within fifteen days (w.e.f. 6 -2-2003). 6. Ins. by s. 8, ibid. (w.e.f. 6 -2-2003). 29 corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.] (2) Notwithstanding anything contained in sub -section ( 1), where any offence under this Act h as been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manag er, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation. For the purposes of this section, (a) company means any body corporate and includes a firm or other association of individuals; and (b) director, in relation to a firm, means a partner in the firm. 142. Cognizance of offences .1[(1)] Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), (a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of th e date on which the cause of action arises under clause (c) of the proviso to section 138: 2[Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient ca use for not making a complaint within such period ;] (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class
period ;] (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.]. 3[(2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction, (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situat ed; or (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated. Explanation .For the purposes of clause ( a), where a ch eque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account.] 4[142A. Validation for transfer of pending cases. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any judgment, decree, order or direction of any court, all cases transferred to the court having jurisdiction under sub -section ( 2) of section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015 (Ord. 6 of 2015) , shall be deemed to have been transferred under this Act, as if that sub -section had been in force at all material time s. (2) Notwithstanding anything contained in sub -section ( 2) of section 142 or sub -section ( 1), where the payee or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the court having jurisdiction under sub -section ( 2) of section 142 or the case has been transferred to that court under sub -section ( 1) and such complaint is pending in that court, all subsequent complaints arising out of section 138 against the same drawer shall be filed before the same court irrespective of 1. Section 142 numbered as sub -section ( 1) thereof by Act 26 of 2015, s. 3 (w.e.f . 15-6-2015). 2. Ins. by Act 55 of 2002, s. 9 (w.e.f. 6-2-2003). 3. Ins. Act 26 of 2015, s. 3 (w.e.f. 15 -6-2015). 4. Ins. by , s. 4, ibid. (w.e.f .15-6-2015). 30 whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction of that court. (3) If, on the date of the commencement of the Negotiable Instruments (Amendment) Act, 2015 (26 of 2015) , more t han one prosecution filed by the same payee or holder in due course, as the case may be, against the same drawer of cheques is pending before different courts, upon the said fact having been brought to the notice of the court, such court shall transfer the case to the court having jurisdiction under sub-section ( 2) of section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015 (Ord. 6 of 2015) , before which the first case was filed and is pending, as if that sub -section had been in force at all material times.] 1[143. Power of Court to try cases summarily. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) all offences under t his Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials: Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees: Provided further that when at the commencement of, or in the course of, a summary trial under this section, it ap pears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing t he parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code. (2) The trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing. (3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint. 2[143A. Power to direct interim compensation. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the Court trying an offence under section 138 may order the drawer of the cheque to pay interim compensation to the complainant (a) in a summary trial or a summons case, where he pleads not guilty to the accusation made in the complaint; and (b) in any other case, upon framing of charge. (2) The interim compensation under sub -section ( 1) shall not exceed twenty per cent. of the amount of the cheque. (3) The interim compensation shall be paid within sixty days from th e date of the order under sub - section (1), or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the drawer of the cheque. (4) If the drawer of the cheque is acquitted, the Court shall di rect the complainant to repay to the drawer the amount of interim compensation, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of the orde r, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the complainant. 1. Ins. by Act 55 of 2002, s. 10 (w.e.f. 6 -2-2003). 2. Ins. by Act 20 of 2018, s. 2 (w.e.f. 1 -9-2018). 31 (5) The interim compensation payable under this section may be recovered as if it were a fine under section 421 of the Code of Criminal Procedure, 1973 (2 of 1974) . (6) The amount of fine imposed under section 138 or the amount of compensation awarded under section 357 of the Code of Criminal Procedure, 1973 (2 of 1974) , shall be reduced by the amount paid or recove red as interim compensation under this section. ] 144. Mode of service of summons .(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) and for the purposes of this Chapter, a Magistrate issuing a summons to an accused or a witness may direct a copy of summons to be served at the place where such accused or witness ordinarily resides or carries on business or personally works for gain, by speed post or by such courier services as are approved by a Court of Session. (2) Where an acknowledgment purporting to be signed by the accused or the witness or an endorsement purported to be made by an y person authorised by the postal department or the courier services that the accused or the witness refused to take delivery of summon s has been received, the Court issuing the summons may declare that the summons has been duly served. 145. Evidence on affidavit. (1)Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) , the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code. (2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein. 146. Banks slip prima fa cie evidence of certain facts. The Court shall, in respect of every proceeding under this Chapter, on production of Bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved. 147. Offences to be compoundable. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) ,every offence punishable under this Act shall be compoundable]. 1[148. Power of Appellate Court to order payment pending appeal against conviction. (1) Notwithstanding anything containe d in the Code of Criminal Procedure, 1973 (2 of 1974), in an appeal by the drawer against conviction under section 138, the Appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty per cent. of the fine or compensation awarded by the trial Court: Provided that the amount payable under this sub -section shall be in addition to any interim compensation paid by the appellant under section 143A. (2) The amount referred to in sub -section ( 1) shall be deposited within sixty da ys from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the appellant. (3) The Appellate Court may direct the release of the amount deposited by the appellant to the complainant at any time during the pendency of the appeal: Provided that if the appellant is acquitted, the Court shall direct the complainant to repay to the appellant the amount so released, with interest at the bank rate as published by the Res erve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the comp lainant.] 1. Ins. by Act 20 of 2018, s. 3 (w.e.f. 1 -9-2018). 32 SCHEDULE .[Enactments repealed ].Rep. by the Repealing and Amending Act, 1891 (12 of 1891), s. 2 and Schedule I.
HE NAVY ACT , 1957 ACT NO. 62 OF 1957 [27th December, 1957.] An Act to consolidate and amend the law relating to the Government of the Indian Navy. BE it enacted by Parliament in the Eighth Year of t he Republic of India as follows : CHAPTER I PRELIMINARY 1. Short title and commencement. (1) This Act may be called the Navy Act, 1957. (2) It shall come into force on such date1 as the Central Government may, by notification in the Official Gazette, appoint. 2. Persons subject to naval law. (1) The following persons shall be subject to naval law wherever they may be, namely: (a) every person belonging to the Indian Na vy during the time that he is liable for service under this Act; (b) every person belonging to the Indian Naval Reserve Forces when he is (i) on active service; or (ii) in or on any property of the naval service including naval establishments, ships and o ther vessels, aircraft, vehicles and armouries; or (iii) called up for training or undergoing training in pursuance of regulations made under this Act, until he is duly released from his training; or (iv) called up into actual service in the Indian Navy in pursuance of regulations made under this Act, until he is duly released therefrom; or (v) in uniform; (c) members of the regular Army and the Air Force when embarked on board any ship or aircraft of the Indian Navy, to such extent and subject to such cond itions as may be prescribed; (d) every person not otherwise subject to naval law, who enters into an engagement with the Central Government under section 6; (e) every person belonging to any auxiliary forces raised under this Act, to such extent and subjec t to such conditions as may be prescribed; and (f) every person who, although he would not otherwise be subject to naval law, is by any other Act or during active service by regulations made under this Act in this behalf made subject to naval law, to such extent and subject to such conditions as may be prescribed. (2) The following persons shall be deemed to be perso ns subject to naval law, namely : (a) every person ordered to be received, or being a passenger, on board any ship or aircraft of the Indian Na vy, to such extent and subject to such conditions as may be prescribed; (b) every person sentenced under this Act to imprisonment or detention, during the term of his sentence, notwithstanding that he is discharged or dismissed with or without disgrace from naval service or would otherwise but for this provision cease to be subject to naval law. 1. 1st January, 1958, vide notification S.R.O. 11(E), dated 31 st December, 1957, see Gazette of India, Extraordinary , 1958, Part II, s. 4( ii) and Goa, Daman and Diu by Reg. 11 of 1963, s. 3 and Sch. (w.e.f. 1 -2-1965) . 10 3. Definitions. In this Act, unless the context otherwise requires, (1) active service means service or duty (a) during the period of operation of a Proclama tion of Emergency issued under clause ( 1) of article 352 of the Constitution; or (b) during any period declared by the Central Government by notification in the Official Gazette as a period of active service with reference to any area in which any person o r class of persons subject to naval law may be serving; (2) Chief of the Naval Staff means the flag officer appointed by the President as Chief of the Naval Staff or in his absence on leave or otherwise an officer appointed by the Central Government to officiate as such or in the absence of such officiating appointment the officer on whom the command devolves in accordance with regulations made under this Act; (3) civil offence means an offence triable by a Court of ordinary criminal jurisdiction in Indi a; (4) civil prison means any jail or place used for the detention of any criminal prisoner under the Prisons Act, 1894 (9 of 1894) , or under any other law for the time being in force; (5) commissioned officer means a person holding a commission from the President in Indian Navy or the Indian Naval Reserve Forces; (6) Court -martial means a Court -martial constituted under this Act; (7) enemy includes all armed rebels, armed mutineers, armed rioters and pirat es and any person in arms against whom it is the duty of any person subject to naval law to act; (8) flag officer means an officer of the rank of Admiral of the Fleet, Admiral, Vice -Admiral or Rear -Admiral; (9) Indian Naval Reserve Forces means the nav al reserve forces raised and maintained by the Central Government; (10) Indian Navy means the regular naval forces raised and maintained by the Central Government; (11) Indian wa ters, for the purposes of sections 31, 97 and 99, means the seas extending from the shores of India to such limits as may be prescribed; (12) naval custody means the arrest or confinement of a person in the prescribed manner or in accordance with the usages of the naval service, and includes military or air force custody; 1[(12A) naval establishment means an establishment belonging to, or under the control of, the Indian Navy whether within or without India;] (13) naval offence means any of the offences under sections 34 to 76; (14) naval service means the naval organisation of India; (15) naval tribunal means a Court -martial constituted under section 97 and includes a disciplinary Court constituted under section 96, a commanding officer or other officer or authority exercising powers of punishment under this Ac t; 2[(16) Officer means a commissioned officer and includes (a) a subordinate officer other than a petty officer; (b) a commissioned officer re -employed as such; ] 3[(17) petty officer means a sailor rated as such and includes a chief petty officer and a master chief petty officer;] 1. Ins. by Act 53 of 1974, s. 3 (w.e.f. 16 -12-1974). 2. Subs. by Act 23 of 2005, s. 2. for clause ( 16) (w.e.f. 23 -6-2005). 3. Subs . by Act 53 of 1974, s. 3, for clause ( 17) (w.e.f. 16 -12-197). 11 (18) prescribed means prescribed by regulations made under this Act; (19) provost -marshal means a person appointed as such under section 89 and includ es any of his deputies or assistants or any other person lawfully exercising authority under him or on his behalf; (20) 1[sailor ] means a person in the naval service other than an officer; (21) ship, except in the expression on board a ship , includes an establishment of the Indian Navy commissioned as a ship in accordance with the custom of the navy; (22) subject to naval law means liable to be arrested and tried under this Act for any offence; (23) subordinate officer means a person appo inted as an acting sub -lieutenant, a midshipman or a cadet in any branch of the Indian Navy or the Indian Naval Reserve Forces, but does not include a cadet whilst under training in a joint service institution; (24) superior officer , when used in relatio n to a person subject to naval law, means any officer or petty officer who is senior to that person under regulations made under this Act and any officer or petty officer, who though not so senior to that person, is entitled under this Act or the regulatio ns made thereunder to give a command to that person, and includes, when such person is serving under prescribed conditions, an officer, junior commissioned officer, warrant officer, noncommissioned officer of the regular Army or the Air Force of higher rel ative rank to that person or entitled under this Act or the regulations made thereunder to give a command to that person; (25) all words and expressions used but not defined in this Act but defined in the Indian Penal Code (45 of 1860) , shall have the mean ings respectively assigned to them in that Code . 4. Fundamental rights to apply to persons subject to naval law with modifications. The rights conferred by Part III of the Constitution in their application to persons subject to naval law shall be restricte d or abrogated to the extent provided in th is Act. CHAPTER II THE NAVAL FORCES 5. Power of Central Government to raise and maintain naval forces. The Central Government may raise and maintain a regular naval force and also reserve and auxiliary naval forces. CHAPTER II I SPECIAL PROVISIONS RELATING TO DISCIPLINE IN CERTAIN CASES 6. Provision respecting discipline of persons under engagement to serve Central Government. (1) If any person not otherwise subject to naval law enters into an engagement with the Central Government to serve, (a) in a particular ship; or (b) in such particular ship or in such ships as the Central Government, the Chief of the Naval Staff, or the prescribed officer may, from time to time, determine; and agrees to become subject to naval law upon entering into the engagement, that person shall, so long as the engagement remains in force and notwithstanding that for the time being he may not be serving in any ship, be subject to naval law. (2) The Centr al Government may, by order, direct that, subject to such exceptions as may in particular cases be made by or on behalf of the Chief of the Naval Staff, persons of any such class as may be specified in the order shall, while being subject to naval law by v irtue of this section, be deemed to be 1. Subs. by Act 53 of 1974, s. 2, for seam an (w.e.f. 16 -12-1974). 12 officers, petty officers or other 1[sailors], as the case may be, for the purposes of this Act or of such provisions of this Act as may be so specified. 7. Relations between the members of the Navy, Army and Air Force acting together. (1) When members of the regular Army and the Air Force or of either of these forces are serving with members of the Indian Navy or Indian Naval Reserve Forces under prescribed conditions, then those members of the regular Army or the Air Force shall exercise such command, if any, and be subject to such discipline as may be prescribed. (2) Nothing in sub -section ( 1) shall be deemed to authorise the exercise of powers of punishment by members of the regular Army or the Air Force over members of the Indian Navy or the Indian Naval Reserve Forces, except as provided in clause ( e) of sub -section ( 3) of section 93 1[or in such cases and subject to such conditions as may be prescribed]. 8. Provision respecting discipline of master of merchant vess el under convoy. (1) Every master or other person for the time being in command of any merchant or other vessel comprised in a convoy under the command of an officer of the Indian Navy shall obey, in all matters relating to the navigation or security of th e convoy, any directions which may be given by such officer, and shall take such precautions for avoiding the enemy as may be required by any such directions. (2) If any such directions are not obeyed, any such officer or any person acting under his orders may compel obedience by force of arms without being liable for any injury or loss of life or any danger to or loss of property resulting therefrom. CHAPTER IV COMMISSIONS, APPOINTMENTS AND ENROLMENTS 9. Eligibility for appointment or enrolment. (1) No person who is not a citizen of India shall be eligible for appointment or enrolment in the Indian Navy or the Indian Naval Reserve Forces except with the consent of the Central Government . Provided that nothing in this section shall render a person inelig ible for appointment or enrolment in the Indian Navy or the Indian Naval Reserve Forces on the ground that he is a subject of Nepal. (2) No woman shall be eligible for appointment or enrolment in the Indian Navy or the Indian Naval Reserve Forces except in such department, branch or other body forming part thereof or attached thereto and subject to such conditions as the Central Government may , by notification in the Official Gazette, specify in this behalf. 10. Commissions and appointments. (1) Officers ot her than subordinate officers shall be appointed by commission granted by the President. (2) The grant of the commission shall be notified in the Official Gazette and such notification s hall be conclusive proof of the grant of such commission. (3) Subordinate officers shall be appointed in such manner and shall hold such rank as may be prescribed. 11. Enrolment. (1) Save as otherwise provided in this Act, the terms and conditions of service of 2[sailors], the person authorised to enrol for service as 2[sailors] and the manner and procedure of such enrolment shall be such as may be prescribed. (2) No person shall be enrolled as a 2[sailor] in the Indian Navy for a period exceeding 3[twenty years] in the first instance : 1. Ins by Act 53 of 1974, s. 4 (w.e.f. 16 -12-1974). 2. Subs. by s. 2, ibid., for seaman (w.e.f. 16 -12-1974). 3. Subs. by Act 34 of 1987, s. 2, for fifteen years (w.e.f. 9 -9-1987). 13 Provided that in t he case of a minor the said period of 1[twenty years] shall be reckoned from the date on which he attains the age of seventeen. (3) Notwithstanding anything contained in any other law for the time being in force , (a) the enrolment of any person under this Act shall be binding on him both during his minority and after he attains majority; (b) neither the parent or guardian of a minor duly enrolled under this Act nor any other person shall be entitled to claim custody of the said minor as against the Central Government or any of its officers or other persons set over him. 12. Validity of enrolment. Where a person after his enrolment has for a period of three months from the date of such enrolment been in receipt of pay as a 2[sailor], he shall be deemed to have been duly enrolled and shall not thereafter be entitled to claim his discharge on the ground of any irregularity or illegality in his engagement or any other ground whatsoever; and if within the said three months such person claims his discharge , no such irregularity or illegality or other ground shall, until such person is discharged in pursuance of his claim, affect his position as a 2[sailor] in the naval
such person is discharged in pursuance of his claim, affect his position as a 2[sailor] in the naval service or invalidate any proceedings, act or thing taken or done prior to his discharge. 13. O ath of allegiance. Every officer and every 2[sailor] shall, as soon as may be, after appointment or enrolment make and subscribe before the commanding officer of the ship to which he belongs, or the prescribed officer an oath or affirmation in the followin g form, that is to say : I.........................do swear in the name of God Solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established and that I will, as in duty bound, honestly and faithfully serve in the naval service and go wherever ordered by sea, land or air, and that I will observe and obey all commands of the President and the commands of any superior officer set over me, even to the peril of my life .. CHAPTER V CONDITIONS OF SERVICE 14. Liability for service of officers and sailors. (1) Subject to the provisions of sub section ( 4), officers and 2[sailors] shall be liable to serve in the Indian Navy or the Indian Naval Reserve Forces, as the case may be, until they are duly discharged, dismissed, dismissed with disgrace, retired, permitted to resign, or released. (2) No officer shall be at liberty to resign his office except with the permission of the Central Government and no 2[sailor] shall be at liberty to resign his post except with the permission of the prescribed officer. (3) The acceptance of any resignation shall be a matter within the discretion of the Central Government or the officer concerned, as the case may be. (4) Officers retired or permitted to resign shall be liable to recall to naval service in an emergency in accordance with regulations made under this Act, and on such recall shall be liable to serve until they have been duly discharged , dismissed, dismissed with disgrace, retired, permitted to resign, or released. 15. Tenure of service of officers and sailors. (1) Every Officer and 2[sailor] shall hold office during the pleasure of the President. (2) Subject to the provisions of this Act and the regulations made thereunder, (a) the Central Government may 3[dismiss or] discharge or retire from the naval service any officer or 2[sailor]; 1. Subs. by Act 34 of 1987, s. 2, for fifteen years (w.e.f. 9 -9-1987). 2. Subs. by Act 53 of 1974, s. 2, for seam an (w.e.f. 16-12-1974). 3. Ins by s. 5, ibid. (w.e.f. 16 -12-197). 14 (b) the Chief of the Naval Staff or any prescribed officer may 1[dismiss or] discharge from the naval s ervice any 2[sailor]. 16. Discharge on expiry of engagement. Subject to the provisions of section 18, a 2[sailor] shall be entitled to be discharged at the expiration of the term of service for which he is engaged unless (a) such expiration occurs during active service in which case he shall be liable to continue to serve for such further period as may be required by the Chief of the Naval Staff; or (b) he is re -enrolled in accordance with the regulations made under this Act. 17. Provisions as to discharge .(1) A 2[sailor] entitled to be discharged under section 16 shall be discharged with all convenient speed and in any case within one month of his becoming so entitl ed: Provided that where a 2[sailor] is serving overseas as the time he becomes entitled to be discharged he shall be returned to India for the purpose of being discharged with all convenient speed, and in any case within three months of his becoming so ent itled: Provided further that where such enrolled person serving oversea does not desire to return to India, he may be discharged at the place where he is at the time. (2) Every 2[sailor] discharged shall be entitled to be conveyed free of cost from any pla ce he may be at the time to any place in India to which he may desire to go. (3) Notwithstanding anything contained in the preceding sub -sections, an enrolled person shall remain liable to serve until he is duly discharged. (4) Every 2[sailor] who is dismi ssed, discharged, retired, permitted to resign or released from service shall be furnished by the prescribed officer with a certificate in the language which is the mother tongue of such 2[sailor] and also in the English language setting forth (a) the aut hority terminating his service; (b) the cause for such termination; and (c) the full period of his service in the Indian Navy and the Indian Naval Reserve Forces. 18. Saving of powers of dismissal by naval tribunals. Nothing in this Chapter shall affect the award by a naval tribunal of the punishment of dismissal with disgrace or dismissal from the naval service under this Act. 19. Restrictions respecting right to form associations, freedom of speech, etc. (1) No perso n subject to naval law shall, without the express sanction of the Central Government, (a) be a member of, or be associated in any way with, any trade union, labour union, political association or with any class of trade unions, labour unions or political associations, or (b) be a member of, or be associated in any way with, any other society, institution, association or organisation that is not recognised as part of the Armed Forces of the Union or is not of a purely social, recreational or religious natur e. Explanation .If any question arises as to whether any society, institution, association or organisation is of a purely social, recreational or religious nature, the decision of the Central Government thereon shall be final. (2) No person subject to nava l law shall attend or address any meeting or take any part in any demonstration organised by any body of persons for any political purposes or for such other purposes as may be specified in this behalf by the Central Government. (3) No person subject to naval law shall communicate with the press or publish or cause to be published any book, letter or other document having bearing on any naval, army or air force subject or 1. Ins by Act 53 of 1974, s. 5 (w.e.f. 16 -12-1974). 2. Subs. by s. 2, ibid., for seam an (w.e.f. 16-12-1974). 15 containing any fact or opinion calculated to embarrass the relations between the Gov ernment and the people or any section thereof or between the Government and any foreign country, except with the previous sanction of the Central Government. (4) No person subject to naval law shall whilst he is so subject practise any profession or carry on any occupation, trade or business without the previous sanction of the Chief of the Naval staff. CHAPTER VI SERVICE PRIVILEGES 20. Immunity from attachment. The arms, clothes, equipments, accoutrements or necessaries of any person in the naval service, while subject to naval law, shall not be seized, nor shall the pay and allowances or any part thereof of such person be attached under any process or direction issued by, or by the authority of, any court or public servant in respect of any claim, decree o r order enforceable against him. 21. Immunity from arrest for debt. (1) No person in the naval service shall, so long as he is subject to naval law, be liable to be arrested for debt under any process or direction issued by, or by the authority of , any Cou rt or public servant. (2) If any such person is arrested in contravention of the provisions of sub -section ( 1), the court or public servant by whom or by whose authority such process or direction was issued shall on complaint by the person arrested or by h is superior officer enquire into the case and if satisfied that the arrest was made in contravention of sub -section ( 1), shall make an order for the immediate discharge of the person arrested and may award of the complainant the costs of the complaint to b e recoverable in the same manner as if such costs were awarded to him by a decree against the person at whose instance such process or direction was issued. (3) No court -fee shall be payable on a complaint made under sub -section ( 2) for recovery of the costs that may be awarded under that sub -section. 22. Immunity of persons attending court -martial or disciplinary court from arrest. (1) No President or other member of a court -martial or disciplinary court, no judge, advocate, no party to any proceeding b efore a court -martial or disciplinary court or no advocate or agent of such party, and no witness acting in obedience to a summons to attend a court -martial or disciplinary court shall , while proceeding to , attending or returning from , a court -martial or d isciplinary court, be liable to arrest under any civil or revenue process. (2) If any such person is arrested under any such process, he may be discharged by order of the court - martial or disciplinary court, as the case may be. 23. Remedy of aggrieved pers ons.(1) If an officer or 1[sailor] thinks that he has suffered any personal oppression, injustice or other ill-treatment at the hands of any superior officer, he may make a complaint in accordance with the regulations made under this Act. (2) The regulati ons referred to in sub -section ( 1) shall provide for the complaint to be forwarded to the Central Government for its consideration if the complaint is not satisfied with the decision on his complaint. 24. Priority of hearing of cases concerning persons in the naval service. (1) On the presentation to any Civil or Revenue Court by or on behalf of any person in the naval service while subject to naval law of a certificate from the proper naval authority of leave of absence having been granted to or applied for by him for the purpose of prosecuting or defending any suit or other proceeding in such court, the Court shall, on the application of such person, arrange, so far as may be possible, for the hearing and final disposal of such suit or other proceeding wit hin the period of the leave so granted or applied for. (2) The certificate from the proper naval authority shall state the first and last day of the leave granted or applied for and set forth a description of the case with respect to which the leave has been granted or applied for, and shall be duly signed and authenticated by such authority. (3) No fee shall be payable to the court in respect of the presentation of any such certificate, or in respect of any application by or on behalf of any such person for priority for the hearing of his case and 1. Subs. by Act 53 of 1974, s. 2, for seam an (w.e.f. 16-12-1974). 16 every such certificate duly signed and authenticated as aforesaid sha ll be conclusive evidence of the correctness of the contents thereof. (4) Where the court is unable to arrange for the hearing and final dispo sal of the suit or other proceeding within the period of the leave granted or applied for as aforesaid, it shall record its reasons for having been unable to do so, and shall cause a copy thereof to be furnished to such person on his application, without a ny payment whatever by him in respect either of the application for such copy or of the copy itself. (5) Every criminal court before which a case is pending against a person in the naval service, shall, so far as may be possible, arrange for the early hear ing and final disposal of such case. 25. Right of the Chief of the Naval Staff or commanding officers to obtain copies of judgments or orders made by a criminal court. A criminal court before which any proceedings have been taken against a person in the na val service while subject to naval law shall, on application by the Chief of the Naval Staff or the commanding officer of that person, grant copies of the judgment and final orders in the case free of cost and without delay. 26. Saving of rights and privil eges under other laws. The rights and privileges specified in the preceding sections of this Chapter shall be in addition to, and not in derogation of, any other rights and privileges conferred on persons in the naval service while subject to naval law or on members of the regular Army, Navy and Air Force generally by any other law for the time being in force. CHAPTER VII PROVISIONS AS TO PAY, PENSION, ETC., AND MAINTENANCE OF FAMILIES 27. Deductions from pay, etc., not to be made unless authori sed.No deductions other than those authorised by or under this or any other Act shall be made from the pay, pensions, gratuities, allowances and other benefits due to officers and 1[sailors] under any regulations for the time being in force. 28. Deductions from pay and allowances of officers. The following deductions may be made from the pay and allowances of an officer without recourse to trial by a naval tribunal, namely: (1) all pay and allowances for everyday of absence without leave unl ess an explanation is given to the satisfaction of the commanding officer for such absence and approved by the Chief of the Naval Staff: Provided that the officer is not dealt with by a naval tribunal for the said absence; (2) all pay and allowances for e veryday while he is in civil or naval custody or under suspension from duty on a charge for an offence of which he is afterwards convicted by a competent naval tribunal or Criminal Court and sentenced to imprisonment; (3) all pay and allowances for everyda y while he is in hospital on account of sickness certified by the prescribed medical officer to have been caused by an act amounting to an offence punishable under this Act: Provided that such certificate is accepted by the Chief of the Naval Staff; (4) any sum required to make good the pay and allowances of any person subject to naval law which he has unlawfully retained or refused to pay; (5) any sum required to make good any loss, damage or destruction of Government property or property belonging to a na val mess, band or institution which after due investigation appears to the Central Government, the Chief of the Naval Staff or the prescribed officer to have been occasioned by the wrongful act or negligence on the part of the officer; 1. Subs. by Act 53 of 1974, s. 2, for seaman (w.e.f. 16-12-1974). 17 (6) any sum required to be paid for the maintenance of his wife or legitimate or illegitimate children under the provisions of section 31; (7) any sum which after due investigation appears to the prescribed officer to be due to a service mess or canteen . 29. Deductions from p ay and allowances of sailors.
officer to be due to a service mess or canteen . 29. Deductions from p ay and allowances of sailors. The following deductions may be made from the pay and allowances of a 1[sailor] without recourse to trial by a naval tribunal, namely: (1) all pay and allowances for everyday of absence without leave unless an explanation is given to the satisfaction of the commanding officer for such absence: Provided that the 1[sailor] is not dealt with by a naval tribunal for the said absence; (2) all pay and allowances for everyday he is in confinement on a charge for an offence of which he is afterwards convicted by a competent naval tribunal or Criminal Court; (3) all pay and allowances for everyday he is in hospital on account of sickness certified by the prescribed medical officer to have been caused by an act amounting to an offence pu nishable under this Act: Provided that such certificate is accepted by the Chief of the Naval Staff or the prescribed officer; (4) any sum required to make good any loss, damage or destruction of any property which after due investigation appears to the Central Government or the Chief of the Naval Staff or the prescribed officer to have been occasioned by the wrongful act or neglige nce on the part of the 1[sailor]; (5) any sum required to be paid for the maintenance of his wife or legitimate or illegitimate children under the provisions of section 31. 30. Deductions awarded by naval tribunals. Deductions may be made from the pay and allowances of an officer or 1[sailor] in respect of any sentence of fine, forfeiture or mulcts of pay and allowances awarded in pursuance of this Act by a naval tribunal. 31. Liability for maintenance of wife and children. (1) A person subject to naval law shall be liable to maintain his wife and his legitimate or illegitimate children to the same extent as if he were not so subject; but the execution or enforcement of any decree or order for maintenance passed or made against such person shall not be direc ted against his person pay, arms, ammunition, equipment s, instruments or clothing. (2) Notwithstanding anything contained in sub -section ( 1), (a) where it appears to the satisfaction of the Central Government or the Chief of the Naval Staff or the prescribed authority that a person subject to naval law has without reasonable cause deserted or left in destitute circumstances his wife or any legitimate child unable to maintain himself or has by reason of contracting a second marriage become liable to provide separate maintenance to his first wife; or (b) where any decree or order is passed under any law against a person who is, or subsequently becomes, subject to naval law for the maintenance of his wife or his legitimate or illegitimate children and a copy of the decree or order is sent to the Central Government or the Chief of the Naval Staff or the prescribed authority; the Central Government, or the Chief of the Naval Staff or the prescribed authority may direct a portion of the pay of the person so subject to naval law to be deducted from such pay and appropriated in the prescribed manner towards the maintenance of his wife or children, but the amount deducted shall not exceed the amount fixed by the decree or order (if any) and shall not be at a hi gher rate than the rate fixed by regulation made under this Act in this behalf: 1. Subs. by Act 53 of 1974, s. 2, for seaman (w.e.f. 16-12-1974). 18 Provided that in the case of a decree or order for maintenance referred to in clause ( b) no deduction from pay shall be directed unless the Central Government, or the Chief of the Naval Staff or the prescribed authority is satisfied that the person against whom such decree or order has been passed or made, has had a reasonable opportunity of appearing, or has actually appeared either in person or through a duly appointed legal p ractitioner, to defend the case before the Court by which the decree or order was passed or made. (3) Where arrears of maintenance under a decree or order referred to in sub -section ( 2) have accumulated while the person against whom the decree or order has been made is subject to naval law whether or not deductions in respect thereof have been made from his pay under this section, no step for the recovery of those arrears shall be taken in any Court after such person has ceased to be so subject unless the C ourt is satisfied that he has, since he ceased to be subject to naval law, the ability to pay the arrears or any part thereof and has failed to do so. (4) Notwithstanding anything contained in any other law, where a proceeding for obtaining a decree or ord er for maintenance is started against a person subject to naval law, (a) the court may send the process for service on that person to the commanding officer of the ship on which such person is serving or on the books of which he is borne; or (b) if, by re ason of the ship being at sea or otherwise, it is impracticable for the court to send the process to the commanding officer, the Court may, after not less than three weeks notice to the Central Government, send it to a Secretary to that Government for tra nsmission to the commanding officer for service on that person: Provided that such service shall not be valid unless there is sent along with the process such sum of money as may be prescribed to enable that person to attend the hearing of the proceeding a nd to return to his ship or quarters after such attendance. (5) If a decree or order is passed or made in the proceeding against the person on whom the process is served, the sum sent along with the process shall be awarded as costs of the proceeding again st that person. (6) No process in any proceeding under this section shall be valid against a person subject to naval law if served on him after he is under orders for service at a foreign station or beyond Indian waters. (7) The production of a certificate of the receipt of the process purporting to be signed by such commanding officer as aforesaid shall be evidence that the process has been duly served , unless the contrary is proved. (8) Where by a decree or order a copy whereof has been sent to the Centra l Government or the Chief of the Naval Staff or the prescribed authority under clause ( b) of sub -section ( 2), the person against whom the decree or order has been passed or made is directed to pay as costs any sum sent along with the process [referred to i n the proviso to sub -section ( 4)], the Central Government may pay to the person entitled an amount in full satisfaction of that sum and the amount so paid by the Central Government shall be deemed to be a public demand recoverable from the person against w hom the decree or order has been passed or made, and without prejudice to any other mode of recovery, may be recovered by deduction from his pay, in addition to the deductions authorised by sub -section ( 2). (9) Where any person subject to naval law has mad e an allotment of any part of his pay and allowances for the benefit of his wife, that allotment shall not be discontinued or reduced until the Central Government or the Chief of the Naval Staff or the prescribed authority is satisfied that the allotment should no longer be made or should be reduced. (10) In this section, the expression pay includes all sums payable to a person subject to naval law in respect of his services other than allowances in lieu of lodgings, rations, provisions, clothing and travelling allowances. 32. Limit of certain deductions. Except when the deductions are made under sub -sections ( 1), (2) and ( 4) of section 28 or sub -sections ( 1) and ( 2) of section 29, the total deductions from the pay and 19 allowances of an officer or 1[sailor] shall not exceeded in any one month one -half of his pay and allowances for that month. 33. Remission of deductions. (1) Any deduction from the pay and allowances authorised by or under this Act may be remitted by the Chief of the Naval Staff in his discre tion. (2) Such deduction may also be remitted in such manner and to such extent and by such other authority as may be prescribed. CHAPTER VIII ARTICLES OF WAR 2[34. Misconduct by officers or persons in command. Every flag officer, captain or other person subject to naval law who, being in command of any ship, vessel or aircraft of the Indian Navy, or any naval establishment (a) fails to use his utmost exertions to bring into action any such ship , vessel or aircraft which it is his duty to bring into actio n; or (b) surrenders any such ship, vessel or aircraft to the enemy when it is capable of being successfully defended or destroyed; or (c) fails to pursue the enemy whom it is his duty to pursue or to assist to the utmost of his ability any friend whom it is his duty to assist; or (d) in the course of any action by or against the enemy improperly withdraws from the action or from his station or fails in his own person and according to his rank to encourage the persons under his command to fight courageously ; or (e) surrenders any such naval establishment or any part of such an establishment to the enemy when it is capable of being successfully defended or when it is his du ty to cause it to be destroyed, shall, (a) if such act is committed with intent to ass ist the enemy or from cowardice, be punished with death or such other punishment as is hereinafter mentioned; and (b) in any other case, be punished with imprisonment for a term which may extend to seven years or such other punishment as is hereinafter me ntioned. 35. Misconduct by persons other than those in command. Every person subject to naval law who, not being in command of any naval establishment or any ship, vessel or aircraft of the Indian Navy, fails when ordered to prepare for action by or against the enemy, or during any such action, to use his utmost exertions to carry the lawful orders of his superior officers into execution shall, (a) if such act is committed with intent to assist the enemy, be punished with death or such other punishme nt as is hereinafter mentioned; and (b) in any other case, be punished with imprisonment for a term which may extend to seven years or such other punishment as is hereinafter mentioned. 36. Delaying or discouraging action or service commanded. Every person subject to naval law who wilfully delays or discourages upon any pretext whatsoever, any action or service which has been commanded on the part of the Navy, regular Army, or Air Force or of any forces co operating therewith shall, (a) if such act is comm itted with intent to assist the enemy, be punished with death or such other punishment as is hereinafter mentioned; and 1. Subs. by Act 53 of 1974, s. 2, for seam an (w.e.f. 16-12-1974). 2. Subs. by s. 7, ibid., for sections 34 to 37 (w.e.f. 16-12-1974). 20 (b) in any other case, be punished with imprisonment which may extend to seven years or such other punishment as is hereinafter mentione d. 37. Penalty for disobedience in action. Every person subject to naval law who, being in the presence or vicinity of the enemy or having been ordered to be prepared for action by or against the enemy (a) desert his post; or (b) sleeps upon his watch, shall be punished with death or such other punishment as is hereinafter mentioned.] 38. Penalty for spying. Every person not otherwise subject to naval law who is or acts as a spy for the enemy shall be punished under this Act with death or such other puni shment as is hereinafter mentioned as if he were a person subject to naval law. 39. Correspondence, etc., with the enemy. Every person subject to naval law, who, (a) traitorously holds correspondence with the enemy or gives intelligence to the enemy; or (b) fails to make known to the proper authorities any information he may have received from the enemy; or (c) assists the enemy with any supplies; or (d) having been made a prisoner of war, voluntarily serves with or aids the enemy; shall be punished with death or such other punishment as is hereinafter mentioned. 40. Improper communication with the enemy. Every person subject to naval law who without any traitorous intention holds any improper communication with the enemy shall be punished with imprisonmen t for a term which may extend to fourteen years or such other punishment as is hereinafter mentioned. 41. Deserting post and neglect of duty. Every person subject to naval law, who, (a) deserts his post; or (b) sleeps upon his watch; or 1[(c) fails to per form or negligently performs the duty imposed on him; or] (d) wilfully conceals any words, practice or design tending to the hindrance of the naval service; shall be punished with imprisonment for a term which may extend to two years or such other punishme nt as is hereinafter mentioned. 2[42. Mutiny defined. Mutiny means any assembly or combination of two or more persons subject to naval law, the Army Act, 1950 (40 of 1950) , or the Air Force Act, 1950 (40 of 1950) , or between persons two at least of whom , are subject to naval law or any such Act, (a) to overthrow or resist lawful authority in the Navy, regular Army or Air Force or any part of any one or more of them or any forces co -operating therewith or any part thereof; or (b) to disobey such authority in such circumstances as to make the disobedience subversive of discipline or with the object of avoiding any duty or service against, or in connection with operations against, the enemy; or (c) to show contempt to such authority in such circumstances as to make such conduct subversive of discipline; or (d) to impede the performance of any duty or service in the Navy, regular Army or Air Force or any part of any one or more of them or any forces co -operating therewith or any part thereof.] 43. Punishment for mutiny. Every person subject to naval law, who, 1. Subs. by Act 53 of 1974, s. 8, for clause ( c) (w.e.f. 16 -12-1974). 2. Subs . by s. 9, ibid., for section 42 (w.e.f. 16-12-1974). 21 (a) joins in a mutiny; or (b) begins, incites, causes or conspires with any other persons to cause, a mutiny; or (c) endeavours to incite any person to join in a mutiny or to commit an act of mutiny; or (d) endeavours to seduce any person in the regular Army, Navy or Air Force from his allegiance to the Constitution or loyalty to the State or duty to his superior officers or uses any means to compel or induce any such person to abstain from acting against the enemy or discourage
superior officers or uses any means to compel or induce any such person to abstain from acting against the enemy or discourage such person from acting against the enemy; or (e) does not use his utmost exertions to suppress 1[or prevent] a mutiny; or (f) wilfully conceals any traitorous or mutinous practice or design or any traitorous words spoken against the State; or (g) knowing or having reason to believe in the existence of any mutiny or of any intention to mutiny does not without delay give information thereof to the commanding officer of his ship or other superior officer; or (h) utters words of sedition or mutiny; shall be punished with death or such other punishment as is hereinafter mentioned. 44. Persons on board ships or aircraft seducing naval personnel from allegiance. Every person not otherwise subject to naval law who being on board any ship or aircraft of the Indian Navy or on board any ship in the service of the Government endeavours to seduce from his allegiance to the Constitution or loyalty to the State or duty to superior officers any person subject to naval law shall be p unished under this Act with death or such other punishment as is hereinafter mentioned as if he were a person subject to naval law. 45. Striking superior officers. Every person subject to naval law who commits any of the following offences, that is to say, (a) strikes or attempts to strike his superior officer; or (b) draws or lifts up any weapon against such officer; or (c) uses or attempts to use any violence against such officer; shall be punished, if the offence is committed on active service with imp risonment for a term which may extend to ten years or such other punishment as is hereinafter mentioned; and in any other case, with imprisonment for a term which may extend to five years or such other punishment as is hereinafter mentioned. 46. Ill -treati ng subordinates. Every person subject to naval law who is guilty of ill -treating any other person subject to such law, being his subordinate in rank or position, shall be punished with imprisonment for a term which may extend to seven years or such other p unishment as is hereinafter mentioned. 47. Disobedience and insubordination. Every person subject to naval law, who, (a) wilfully disobeys any lawful command of his superior officer; or (b) in the presence of his superior officer, or otherwise shows or expresses his intention to disobey a lawful command given by such superior officer; or (c) uses insubordinate, threatening or insulting language to his superior officer; or (d) behaves with contempt to his superior officer; 1. Ins by Act 53 of 1974, s. 10 (w.e.f. 16 -12-1974). 22 shall, if the offence is committ ed on active service or in a manner to show wilful defiance of authority, be punished with imprisonment for a term which may extend to ten years or such other punishment as is hereinafter mentioned and in other cases, be punished with imprisonment for a te rm which may extend to three years or such other punishment as is hereinafter mentioned. 48. Quarrelling, fighting and disorderly behavio ur.Every person subject to naval law , who, (a) quarrels, fights with or strikes any other person, whether such person is or is not subject to naval law; or (b) uses reproachful or provoking speeches or gestures tending to make a quarrel or disturbance; or (c) behaves in a disorderly manner; shall be punished with imprisonment for a term which may extend to two years or s uch other punishment as is hereinafter mentioned. 49. Desertion. (1) Every person subject to naval law who absents himself from his ship or from the place where his duty requires him to be, with an intention of not returning to such ship or place, or who a t any time and under any circumstances when absent from his ship or place of duty does any act which shows that he has an intention of not returning to such ship or place is said to desert. (2) Every person who deserts shall, (a) if he deserts to the enem y, be punished with death or such other punishment as is hereinafter mentioned; or (b) if he deserts under any other circumstances, be punished with imprisonment for a term which may extend to fourteen years or such other punishment as is hereinafter menti oned; and in every such case he shall forfeit all pay, head money, bounty, salvage, prize money and allowances that have been earned by him and all annuities, pensions, gratuities, medals and decorations that may have been granted to him and also all cloth es and effects which he may have left on board the ship or the place from which he deserted, unless the tribunal by which he is tried or the Central Government or the Chief of the Naval Staff, otherwise directs. 50. Inducing person to desert. Every person subject to naval law who endeavours to seduce any other person subject to naval law to desert shall be punished with imprisonment for a term which may extend to two years or such other punishment as is hereinafter mentioned. 51. Breaking out o f ship and absence without leave. Every person subject to naval law who without being guilty of desertion improperly leaves his ship or place of duty 1[or any place where he is required to be] or is absent without leave shall be punished with imprisonment for a term which may extend to two years or such other punishment as is hereinafter mentioned and shall also be punished by such mulcts of pay and allowances as may be prescribed. 52. Drunkenness. 2[(1)] Every person subject to naval law who is guilty of drunkenness shall, if the offence is committed on active service, be punished with imprisonment for a term which may extend to two years or such other punishment as is hereinafter mentioned and in other cases be punished with imprisonment for a term which may extend to six months or such other punishment as is hereinafter mentioned. 3[(2) For the purpose of sub -section ( 1), a person shall be deemed to be guilty of drunkenness if , owing to the influence of alcohol or any drug whether alone or in combination with any other circumstances, he is unfit to be entrusted with his duty or with any duty which he may be called upon to perform or behaves in a disorderly manner or in a manner likely to bring discredit to the naval service. ] 53. Uncleanness or indecent ac ts.Every person subject to naval law who is guilty of, 1. Ins by Act 53 of 1974, s. 11 (w.e.f. 16 -12-1974). 2. Section 52 renumbered as sub -section ( 1) thereof by s. 12, ibid. (w.e.f. 16 -12-1974). 3. Ins. by s. 12, ibid. (w.e.f. 16 -12-1974). 23 (a) uncleanness; or (b) any indecent act; shall be punished with imprisonment for a term which may extend to two years or such other punishment as is hereinafter mentioned. 54. Cruelty and conduct un becoming the character of an officer. (1) Every officer subject to naval law who is guilty of cruelty shall be punished with imprisonment for a term which may extend to seven years or such other punishment as is hereinafter mentioned. (2) Every officer subject to naval law who is guilty of any scandalous or fraudulent conduct or of any conduct unbecoming the character of an officer shall be punished with imprisonment for a term which may extend to two years or such other punishment as is hereinafter ment ioned. 55. Losing ship or aircraft. (1) Every person subject to naval law who 1[wilfully] loses, strands or hazards or suffers to be lost, stranded or hazarded any ship of the Indian Navy or in the service of the Government, or loses or suffers to be lost any aircraft of the Indian Navy or in the service of the Government shall be punished with imprisonment for a term which may extend to fourteen years or such other punishment as is hereinafter mentioned. (2) Every person subject to naval law who negligentl y or by any default loses , strands or hazards or suffers to be lost, stranded or hazarded any ship of the Indian Navy or in the service of the Government, or loses or suffers to be lost any aircraft of the Indian Navy or in the service of the Government sh all be punished with imprisonment for a term which may extend to two years or such other punishment as is hereinafter mentioned. 2[55A. Dangerous unauthorised flying. Every person subject to naval law, who is guilty of any act or neglect in flying or in th e use of any aircraft of the Indian Navy or in relation to any such aircraft or aircraft material, which causes or is likely to cause loss of life or bodily injury to any person shall, (a) if he acts wilfully or with wilful neglect, be punished with impri sonment for a term which may extend to fourteen years 3[or such other punishment as is hereinafter mentioned]; and (b) in any other case, be punished with imprisonment for a term which may extend to five years or such other punishment as is hereinafter men tioned. 55B. Inaccurate certificate. Every person subject to naval law who signs any certificate in relation to an aircraft or aircraft material belonging to or in the service of the Government without ensuring the accuracy thereof, shall be punished with imprisonment for a term which may extend to two years or such other punishment as is hereinafter mentioned. 55C. Low flying and annoyance by flying. Every person subject to naval law being the pilot of an aircraft of the Indian Navy, who (a) flies it at a height less than the minimum height authorised by his commanding officer or appropriate service authority except while taking off or landing; or (b) flies it so as to cause or likely to cause unnecessary annoy ance to any person, shall be punished with imprisonment for a term which may extend to two years or such other punishment as is hereinafter mentioned. 55D. Disobedience of lawful command of captain of an aircraft. Every person subject to naval law, who whi le he is in an aircraft belonging to or in the use of the Government, disobeys any lawful command given by the captain of the aircraft, whether such captain is subject to naval law or not, in relation to all matters relating to flying or handling of the ai rcraft or affecting the safety thereof, shall be punished with imprisonment for a term which may extend to fourteen years or such other punishment as is hereinafter mentioned.] 1. Subs. by Act 53 of 1974, s. 14, for designedly (w.e.f. 16 -12-1974). 2. Ins. by s. 14 , ibid. (w.e.f. 15 -12-1974). 3. Ins. by Act 48 of 1982, s. 2 (w.e.f. 16 -10-1982). 24 56. Offences by officers in charge of convoy. (1) All officers appointed for th e convoy and protection of any ships or vessels shall diligently perform their duty without delay according to their instructions in that behalf. (2) Every such officer subject to naval law, who, (a) does not defend the ships and goods under his convoy wi thout deviation to any other objects; or (b) refuses to fight in their defence if they are assailed; or (c) cowardly abandons and exposes the ships in his convoy to hazard; or (d) demands or exacts any money or other reward from any merchant or master for convoying any ships or vessels entrusted to his care; or (e) misuses the masters or mariners thereof; shall be punished with death or such other punishment as is hereinafter mentioned, and shall also make such reparation in damages to the merchants, owners and others as a Civil Court of competent jurisdiction may adjudge. 57. Taking unauthorised goods on board ship. Every officer subject to naval law in command of any ship of the Indian Nav y who receives on board or permits to be received on board such ship any goods or merchandise whatsoever other than for the sole use of the ship or persons belonging to the ship, except goods and merchandise on board any ship which may be shipwrecked or in imminent danger either on the high seas or in some port, creek, or harbour, for the purpose of preserving them for their proper owners, or except such goods or merchandise as he may at any time be ordered to take or receive on board by order of the Centra l Government or his superior officer, shall be punished with dismissal from the naval service or such other punishment as is hereinafter mentioned. 58. Offences in respect of property. Every person subject to naval law who wastefully expends or fraudulentl y buys, sells or receives any property of Government or property belonging to a naval, military or air force mess, band or institution, and every person who knowingly permits any such wasteful expenditure, or any such fraudulent purchase, sale or receipt, shall be punished with imprisonment for a term which may extend to two years or such other punishment as is hereinafter mentioned. 59. Arson. Every person subject to naval law who unlawfully sets fire to any dockyard, victualling yard or steam factory yard , arsenal, magazine, building, stores or to any ship, vessel, hoy, barge, boat, aircraft, or other craft or furniture thereunto belonging, not being the property of an enemy, shall be punished with death or such other punishment as is here inafter mentioned . 60. Falsifying official documents and false declarations. Every person subject to naval law (a) who knowingly makes or signs a false report, return, list, certificate, book, muster or other document to be used for official purposes; or (b) who commands, counsels or procures the making or signing thereof; or (c) who aids or abets any other person in the making or signing thereof; or (d) who knowingly makes, commands, counsels or procures the making of, a false or fraudulent statement or a fraudulent omiss ion in any such document; shall be punished with imprisonment for a term which may extend to seven years or such other punishment as is hereinafter mentioned. 61. Malingering, etc. Every person subject to naval law (a) who wilfully does any act or wilfull y disobeys any orders whether in hospital or elsewhere with intent to produce or to aggravate any disease or infirmity or to delay his cure; or (b) who feigns any disease, infirmity or inability to perform his duty; 25 shall be punished with imprisonment for a term which may extend to five years or such other punishment as is hereinafter mentioned. 62. Penalty for endeavouring to stir up disturbance on account of unwholesomeness of victuals
hereinafter mentioned. 62. Penalty for endeavouring to stir up disturbance on account of unwholesomeness of victuals or other just grounds. Every person subject to naval law who has any c ause of complaint either of the unwholesomeness of the victuals or upon any other just ground shall quietly make the same known to his superior or captain or to the Chief of the Naval Staff, in accordance with the prescribed channels of communication and t he said superior, captain or Chief of the Naval Staff shall, as far as he is able, cause the same to be presently remedied; and every person subject to naval law who upon any pretence whatever attempts to stir up any disturbance shall be punished with impr isonment for a term which may extend to fourteen years or such other punishment as is hereinafter mentioned. 63. Offences in respect of papers relating to prize. (1) All the papers, charter -parties, bills of lading passports and other writings whatsoever t hat shall be taken, seized, or found 1[aboard] any ships which are taken as prize shall be duly preserved and the commanding officer of the ship which takes such prize shall send the originals entire and without fraud to the Court of competent jurisdiction or such other Court or commissioners as shall be authorised to determine whether such prize be lawful capture, there to be viewed, made use of and proceeded upon according to law. (2) Every commanding officer who wilfully fails to send the papers, charter -parties, bills of lading, passports or other writings whatsoever that shall be taken, seized, or found 1[aboard] any ships which are taken as prize to the proper Court or other authority shall be punished with dismissal from the naval service or such other punishment as is hereinafter mentio ned and in addition shall forfeit and lose any share of the capture. 64. Offences in respect of price. Every person subject to naval law who takes out of any prize or ship seized for prize, any money , plate or goods, unless it is necessary for the better s ecuring thereof, or for the necessary use and service of any ships of war of the Indian Navy, before the same be adjuged lawful prize in a Court of competent jurisdiction, shall be punished with imprisonment for a term which may extend to two years or such other punishment as is hereinafter mentioned, and in addition shall forfeit and lose his share of the capture. 65. Offences in respect of persons on board of prize ship. Every person subject to naval law who in any sort pillages, beats, or ill -treats offi cers, mariners or other persons on board a ship or vessel taken as prize or who unlawfully strips them off their clothes, shall be punished with imprisonment for a term which may extend to two years or such other punishment as is hereinafter mentioned. 66. Unlawful taking or ransoming of prize.Every commanding officer of a ship of the Indian Navy subject to naval law, who, (a) by collusion with the enemy take as prize any vessel, goods or thing; or (b) unlawfully agrees with any person for the ransoming of any vessel, goods or thing taken as prize; or (c) in pursuance of any unlawful agreement for ransoming or otherwise by collusion actually quits or restores any vessel, goods or thing taken as prize; shall be punished with imprisonment for a term which may extend to two years or such other punishment as is hereinafter mentioned. 67. Breaking bulk on board a prize ship. Every person subject to naval law who breaks bulk on board any vessel taken as prize, or detained in the exercise of any beligerent right or under any law relating to piracy or to the slave trade or to the customs, with intent dishonestly to misappropriate anything therein or belonging thereto, shall be punished with imprisonment for a term which may extend to two years or such other punish ment as is hereinafter mentioned. 1. Subs. by Act 58 of 1960, s. 3 and the Second Schedule, for abroad ( w.e.f. 26-12-1960) . 26 68. Violation of the Act, regulations and orders. Every person subject to naval law who neglects to obey or contravenes any provisions of this Act or any regulation made under this Act or any general or local order, shall, unless other punishment is provided in this Act for such neglect or contravention, be punished with imprisonment for a term which may extend to two years or such other punishment as is hereinafter mentioned. 69. Offences in relation to Court -martial.Every person subject to naval law, who, (a) being duly summoned or ordered to attend as a witness before a court -martial wilfully or without reasonable excuse fails to attend; or (b) refuses to take an oath or make an affirmation legally required by a court -martial to be taken or made; or (c) being sworn, refuses to answer any questions which he is in law bound to answer; or (d) refuses to produce or deliver up a document in his power which the court may legally demand; or (e) is guilty of contempt of court -martial; shall be punished with imprisonment for a term which may extend to three years or such other punishment as is hereinafter mentioned. 70. Fraudulent entry. Every person who upon entry into or offering himself to enter the naval service wilfully makes or gives any false statement whether orally or in writing to any officer or person authorised to enter or enrol 1[sailors] or others in or for such naval service, shall, if he has become subject to naval law, be punished with imprisonment for a term which may extend to five years or such other punishment as is hereinafter mentioned. 71. Escape from custody. Every person subject to naval law who being in lawful custody escapes or attempts to escape from such custody shall be punished with imprisonment for a term which may extend to five years or such other punishment as is hereinafter mentioned. 72. Failure to assist in detention of offenders. Every person subject to naval law, who, (a) does not use his utmost endeavours to detect, apprehend or bring to pun ishment all offenders against this Act; or (b) does not assist the officers appointed for that purpose; shall be punished with imprisonment for a term which may extend to two years or such other punishment as is hereinafter mentioned. 73. Penalty for failu re to attend by members of reserve forces when called up. Every member of the Indian Naval Reserve Forces 2[and every person belonging to any auxiliary forces raised under this Act] who, when called up for training or when called up into actual service wit h the Indian Navy in pursuance of the regulations made under this Act, and required by such call to join any ship or attend at any place, fails, without reasonable excuse to comply with such requirement, shall be punished with imprisonment for a term which may extend to three years or such other punishment as is hereinafter mentioned. 74. Offences against good order and naval discipline. Every person subject to naval law who is guilty of an act, disorder, or neglect to the prejudice of good order and naval discipline, not hereinbefore specified, shall be punished with imprisonment for a term which may extend to three years or such other punishment as is hereinafter mentioned. 75. Attempts. Every person subject to naval law who attempts to commit any of the o ffences specified in sections 34 to 74 and 76 and in such attempt does any act towards the commission of the 1. Subs. by Act 53 of 1974, s. 2, for seam an (w.e.f. 16-12-74). 2. Ins. by s. 15 , ibid. (w.e.f. 16 -12-1974). 27 offence shall, where no express provision is made by this Act for the punishment of such attempt, be punished, (a) if the offence attempted to be committed is punishable with death, with imprisonment for a term which may extend to fourteen years or such other punishment as is hereinafter mentioned, and (b) if the offence attempted to be committed is punishable with imprisonment, with one -half of the maximum punishment provided for the offence or with such other punishment as is hereinafter mentioned. 76. Abetment of offences. Any person subject to naval law who abets the commission of any of the offences specified in sections 34 to 74 shall, whether the act abetted is committed or not in consequence of the abetment, and where no express provision is made by this Act for the punishment of such abetment, be punished with the punishment provided for that offence. 77. Civil offences. (1) Every person subj ect to naval law who commits a civil offence punishable with death or with imprisonment for life shall be punished with the punishment assigned for that offence. (2) Every person subject to naval law who commits any other civil offence shall be punished ei ther with the punishment assigned for the offence or with imprisonment for a term which may extend to three years or such other punishment as is hereinafter mentioned. 78. Jurisdiction as to place and offences. (1) Subject to the provisions of sub -section (2), every person subject to naval law who is charged with a naval offence or a civil offence may be tried and punished under this Act regardless of where the alleged offence was committed. (2) A person subject to naval law who commits an offence of murder against a person not subject to army, naval or air force law or an offence of culpable homicide not amounting to murder against such person or an offence of rape in relation to such person shall not be tried and punished under this Act unless he commits a ny of the said offences (a) while on active service; or (b) at an y place outside India; or (c) at any place specified by the Central Government by notification in this behalf. 79. Jurisdiction as to time. No person unless he is an offender who has avoided apprehension or fled form justice or committed the offence of desertion or fraudulent entry or the offence of mutiny shall be tried or punished in pursuance of this Act for any offence committed by him unless such trial commences within three years from t he commission of such offence: Provided that in the computation of the said period of three years any time during which an offender was outside Indial or any time during which he was a prisoner of war shall be deducted: 1[Provided further that in computation of the said period of three years, any time during which, (a) the commission of the offence was not known to the person aggrieved by the offence or to the authority competent to initiate action, the first day on which such offence comes to the knowledge of such person or authority, whichever is earlier; (b) it was not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the authority investigating into the offence, whichever is earlier, shall be excluded; Provided also that where the institution of the prosecution in respect of an offence has been stayed by an injunction or order, then, in computing the said period of three years, the period of the cont inuance of the injunction or order, the day on which it was issued or made and the day on which it was withdrawn shall be excluded: Provided also that] no trial for an offence of desertion other than desertion on active service or fraudulent entry shall be commenced if the person in question not being an officer has subsequently to the 1. Subs. by Act 23 of 2005, s. 3, for Proviso further that (w.e.f. 23 -6-2005). 28 commission of the offence served continuously in an exemplary manner for not less than three years in the Indian Navy. 80. Trial after a person ceases to be subject to naval law.When any offence mentioned in this Chapter has been committed by any person while subject to naval law and such person has since the commission of the offence ceased to be subject to naval law, he may be taken into and kept in custody, tried and punis hed under this Act for such offence in like manner as he may have been taken into and kept in custody, tried and punished if he had continued subject to naval law: Provided that he shall not be tried for such offence except in the case of an offence of mut iny or desertion, unless the trial against him commences within six months after he has ceased to be so subject. CHAPTER IX PROVISIONS AS TO PUNISHMENTS 81. Punishments. (1) The following punishments may be inflicted under this Act, namely: (a) death; (b) imprisonment which may be for the term of life or any other lesser term; (c) dismissal with disgrace from the naval service; (d) detention; (e) dismissal from the naval service; (f) forfeiture of seniority in rank in the case of officers 1[and master chie f petty officers]; (g) forfeiture of time for promotion in the case of 2[officers below the rank of commander and master chief petty officers]; (h) dismissal from the ship to which the offender belongs; (i) 3[reduction in rank], in the case of 4[petty officers ] and persons holding leading rates; (j) fine, in respect of civil offences; (k) mulcts of pay and allowances; (l) severe reprimand or reprimand; (m) forfeiture of pay, head money, bounty, salvage, prize money and allowances earned by, and all annu ities, pensions, gratuities, medals and decorations granted to, the offender or of any one or more of the above particulars; also in the case of desertion, of all clothes and effects left by the deserter in the ship to which he belongs; (n) such minor puni shments as are inflicted according to the custom of the navy or may from time to time be prescribed. (2) Each of the punishments specified in sub -section ( 1) shall be deemed to be inferior in degree to every punishment preceding it in the above scale. 82. Provisions as to award of punishment. (1) The punishments that may be inflicted under this Act shall be awarded in accordance with the provisions of the following sub -sections. (2) Except in the case of mutiny in time of war or on active service, the punis hment of death shall not be inflicted on any offender until the sentence has been confirmed by the Central Government. (3) The punishment of imprisonment for a term exceeding two years shall in all cases be accompanied by a sentence of dismissal with disgrace from the naval service. 1. Ins. by Act 48 of 1982, s. 3 (w.e.f. 16 -10-1982). 2. Subs. by s. 3, ibid., for subordinate officers (w.e.f. 16 -10-1982). 3. Subs.
., for subordinate officers (w.e.f. 16 -10-1982). 3. Subs. by s. 3, ibid., for disrating (w.e.f. 16 -10-1982). 4. Subs. by s. 3, ibid., for subordinate and petty officers (w.e.f. 16 -10-1982). 29 (4) The punishment of imprisonment for a term not exceeding two years may in all cases be accompanied by a sentence of dismissal with disgrace or dismissal from the naval service: Provide d that in the case of officers, unless the sentence of dismissal with disgrace is also awarded, such sentence of imprisonment shall involve dismissal from the naval service. (5) The sentence of imprisonment may be rigorous or simple, or partly rigorous and partly simple. (6) The sentence of dismissal with disgrace shall involve in all cases forfeiture of all pay, head money, bounty, salvage, prize money an d allowances that have been earned by and of all annuities, pensions, gratuities, medals and decorations that may have been granted to the offender and an incapacity to serve Government again in a defence service, or a civil service, or to hold any post connected with defence or any civil post under the Government: Provided that the forfeiture of moneys shall not apply, except in the case of deserters, to moneys which should have been paid on the last pay day preceding conviction. (7) The punishment of dismissal from the naval service shall in the case of persons who hold any lien on appointments in the regular Army or Air Force, involve dismissal from such army or air force service. (8) The punishment of detention may be inflicted for any term not exceeding two years but no sentence of detention shall be awarded unless naval detention quarters or army or air force detention barracks are in existence. (9) The punishment of imprisonment or detention whether on board ship or on shore shall, subject to the provisions of sub -section ( 14), involve 1[reduction in rank], in the case of a petty officer or a person holding a leading 2[rank], and shal l in all cases be accompanied by stoppage of pay and allowances during the term of imprisonment or detention: Provided that where the punishment awarded is detention for a term not exceeding fourteen days, the sentence may direct that the punishment shall not be accompanied by stoppage of pay and allowances during the term of detention. (10) No officer shall be subject to detention. (11) The punishment of forfeiture of seniority shall be imposed in the substantive rank held at the date of the sentence, and shall involve a corresponding forfeiture of seniority in every higher acting rank subject always to the condition that forfeiture of seniority in any rank shall in no case exceed the seniority in that rank at the date of the sentence. (12) The punishment of forfeiture of seniority shall involve the loss of the benefit of service included in the seniority forfeited for the purposes of pay, pension, gratuity, promotion and such other purposes, as may be prescribed, provided that such pay, pens ion, gratuity and promotion and other purposes depend upon such service. 3[(12A) No master chief petty officer shall be subject to the punishment of forfeiture of seniority of more than twelve months.] (13) The punishment of forfeiture of time for promotio n shall delay the promotion by the time specified, 3[(13A) No master chief petty officer shall be subject to the punishment of forfeiture of time for promotion of more than twelve months.] (14) No person shall be 4[reduced in rank] below the limits prescribed, or lower either actually or relatively than the 5[rank] in which he entered or was appointed in the naval service. 1. Subs. by Act 48 of 1982, s. 4, for distracting (w.e.f. 16 -10-1982). 2. Subs. by s. 4, ibid., for rate (w.e.f. 16 -10-1982). 3. Ins. by s. 4 , ibid. (w.e.f. 16 -10-1982). 4. Subs. by s. 4, ibid., for distracting (w.e.f. 16 -10-1982). 5. Subs. by s. 4, ibid., for rate (w.e.f. 16 -10-1982). 30 (15) Mulcts of pay and allowances shall not be awarded except as provided in sub-sections ( 16) and ( 17). (16) Mulc ts of pay and allowances shall be awarded in accordance with the regulations made under this Act on conviction of offences under Section 31. (17) Mulcts of pay may also be awarded to make good any proved loss or damage occasioned by the offence on which th ere is a conviction, and for the offence of drunkenness by 1[sailors]. (18) The punishment of fine may be awarded in respect of civil offences in addition to, or in lieu of, other punishments specified in this Act. (19) The forfeiture of moneys under clause ( m) of sub -section ( 1) of section 81 shall not, except in case of desertion apply to moneys which should have been paid on the last pay day preceding conviction. (20) All other punishments authorised by this Act may be inflicted in such manner as is heretofore in use in the naval service or as may be prescribed. (21) Subject to the provisions of the foregoing sub -sections, where any punishment is specified by this Act as the penalty for an offence and it is further declared that such other punishment as is hereinafter mentioned may be awarded in respect of the same offence, the expression such other punishment shall be deemed to comprise any one or more of the punishments inferior in degree to the specified punishment according to the sca le of punishments laid down in sub -section ( 1) of section 81. CHAPTER X ARREST 83. Power to issue warrants of arrest .(1) The Chief of the Naval Staff, every officer in command of a fleet or squadron of ships of the Indian Navy or of any ship of the Indian Navy or the senior officer present at a port or an officer having by virtue of sub -sections ( 2) and ( 3) of section 93 power to try offences, may, by warrant under his hand, authorise any person to arrest any offender subject to naval law for any offence t riable under this Act mentioned in such warrant and any such warrant may include the names of more persons than one in respect of several offences of the same nature. (2) Any person named in any such warrant as aforesaid may, forthwith on his arrest, if the warrant so directs, be taken to the ship of the Indian Navy to which he belongs or some other ship of the Indian Navy. (3) A person authorised to arre st an offender may use such force as may be necessary for the purpose of effecting such arrest. (4) Where a warrant under sub -section ( 1) is issued to a police officer, the police officer shall take steps to execute the warrant and arrest the offender in l ike manner as if such warrant had been issued by a Magistrate of competent jurisdiction and shall, as soon as may be, deliver the person when arrested into naval custody. 84. Arrest without warrant .(1) Any person subject to naval law may be ordered withou t warrant into naval custody by any superior officer for any offence triable under this Act. (2) A person subject to naval law may arrest without warrant any other person subject to naval law though he may be of a higher rank who in his view commits an off ence punishable with death, or imprisonment for life or for a term which may extend to fourteen years. (3) A provost -marshal may arrest any person subject to naval law in accordance with the provisions of section 89. (4) It shall be lawful for the purpose of effecting arrest, or taking a person into custody, without warrant to use such force as may be necessary for the purpose. 1. Subs. by Act 53 of 1974, s. 2, for seam an (w.e.f. 16 -10-1982). 31 85. Procedure and conditions of naval custody .(1) No person subject to naval law who is arrested under this Act shall be detained in naval custody without being informed, as soon as may be, of the grounds for such arrest. (2) Every person subject to naval law who is arrested and detained in naval custody shall be produced before his commanding officer or other officer prescribed in t his behalf within a period of forty -eight hours of such arrest excluding the time necessary for the journey from the place of arrest to such commanding or other officer and no such person shall be detained in custody beyond the said period without the auth ority of such commanding or other officer. 86. Investigation after arrest .The charge made against any person subject to naval law taken into custody shall without any unnecessary delay be investigated by the proper authority and as soon as may be either p roceedings shall be taken for the trial or such person shall be discharged from custody. 87. Duty to receive or keep in custody .(1) The commanding officer shall be responsible for the safe custody of every person who is in naval custody on board his ship or in his establishment. (2) The officer or 1[sailor] in charge of a guard, or a provost -marshal shall receive and keep any person who is duly committed to his custody. 88. Procedure before trial .Subject to the provisions of this Act, the procedure before trial and the manner of investigation shall be as prescribed. 89. Provost -marshals .(1) Provost -marshals may be appointed by the Chief of the Naval Staff or the prescribed officer. (2) The duties of a provost -marshal or to take char ge of persons in naval custody, to preserve good order and discipline and to prevent breaches of the same by persons subject to naval law or to the law in force relating to the Government of the regular Army or the Air Force. (3) A provost -marshal may at any time arrest and detain for trial any person subject to naval law who commits, or is charged with, an offence and may also carry into effect any punishment to be inflicted in pursance of a sentence passed under this Act, but s hall not inflict any punishment on his own authority: Provided that no officer shall be so arrested or detained otherwise than on the order of another officer. (4) For the purpose of sub -sections ( 2) and ( 3), a provost -marshal sha ll be deemed to include a provost -marshal and any of his assistants appointed under the law in force relating to the government of the regular Army or the Air Force. CHAPTER XI CHARGE 90. Joinder of charges .For every distinct offence of which any person i s accused, there shall be a separate charge but except as otherwise provided by regulations made under this Act all separate charges may be tried together. 91. Acts amounting to different offences .If a single act or series of acts is of such a nature that it is doubtful which of several offences the acts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at one trial; or he may be charged in the alte rnative with having committed some one of the said offences. 92. Joinder of accused person. The following persons may be char ged and tried together, namely : (i) persons accused of the same offence committed in the course of the same transaction; (ii) persons accused of an offence and persons accused of abetment of, or an attempt to commit, such offence; and 1. Subs. by Act 53 of 1974, s. 2, for seam an (w.e.f. 16 -10-1982). 32 (iii) persons accused of different offences committed in the course of the same transaction : Provided that in a trial by a court -martial the trial judge advocate may, on the application made in this behalf by any accused, direct that each of the accused be tried separately by the same court -martial. CHAPTER XII AUTHORITIES SAVING POWER TO AWARD PUNISHMENTS 93. Power of court -martial and commanding officers to try offences. (1) An offence triable under this Act may be tried and punished by court -martial. (2) An offence not capital which is triable under this Act and which is committed by a person other than a n officer (and in cases by this Act expressly provided for when committed by an officer), may, subject to regulations made under this Act be summarily tried and punished by the commanding officer of the ship to which the offender belongs at the time either of the commission or of the trial of the offence, subject to the restriction that the commanding officer shall not have power to award imprisonment or detention for more than three months, or to award dismissal with disgrace from the naval service: Provid ed that no sentence of imprisonment or dismissal shall be carried into effect until approved by the prescribed authorities. (3) The power by this section vested in a commanding officer of a ship may, subject to regulations made under this Act, (a) as resp ects 1[sailors] on board a tender to the ship, be exercised in the case of a single tender absent from the ship, by the officer in command of such tender and in the case of two or more tenders absent from the ship in company or acting together, by the offi cer in immediate command of such tenders; (b) as respects 1[sailors] on board any boat belonging to the ship, be exercised when such boat is absent on detached service by the officer in command of the boat; (c) as respect s 1[sailors] on detached service either on shore or otherwise, be exercised by the officer in immediate command of those persons; (d) as respects 1[sailors] quartered in naval barracks, be exercised by the officer in command of the barracks; (e) as respects 1[sailors] attached to or serv ing with any body of the regular Army or the Air Force under prescribed conditions be exercised by the commanding officer of any such body of the regular Army or the Air Force. (4) The commanding officer of a ship or barracks may delegate the power of awar ding punishments inferior in scale to dismissal, to other officers under his command in accordance with the regulations made under this Act. 94. Power of Central Government, Chief of the Naval Staff and other officers to impose forfeiture of time or senior ity. 2[(1) The Central Government may impose on
Naval Staff and other officers to impose forfeiture of time or senior ity. 2[(1) The Central Government may impose on any officer below the rank of commander one or more of the following punishments, namely: (a) forfeiture of seniority in rank of not more than twelve months; (b) forfeiture of time for promotion of not more than twelve months; (c) mulcts of pay and allowances. (2) The Chief of the Naval Staff may impose on 3[any officer below the rank of commander ] one or more of the following punishments, namely: (a) forfeiture of seniority in rank of not more than si x months; 1. Subs. by Act 53 of 1974, s. 2, for seam an (w.e.f. 16 -12-1974). 2. Subs. by Act 23 of 2005 , s. 4, for sub -sections ( 1), (2), (2A), and ( 3) (w.e.f. 2 3-6-2005). 3. Subs. by Act 48 of 1982, s. 5, for any subordinate officer (w.e.f. 16 -10-1982). 33 (b) forfeiture of time for promotion of not more than six months; (c) mulcts of pay and allowances. (2A) The Flag Officer Commanding -in-Chief of a naval command may, subject to regulations made under this Act, impose on any officer below the rank of commander one or more of the following punishments, namely: (a) forfeiture of seniority in rank of not more than three months; (b) forfeiture of time for pro motion of not more than three months; (c) severe reprimand or reprimand; (d) mulcts of pay and allowances. (3) The commanding officer of a ship may. subject to regulations made under this Act, may impose on any officer below the rank of commander one or mo re of the following punishments, namely: (a) forfeiture of seniority in rank of not more than three months; (b) forfeiture of time for promotion of not more than three months; (c) mulcts of pay and allowances. ] (4) In imposing punishments under sub-sections ( 1) 1[(2) and ( 2A)], it shall not be necessary for the Central Government or the Chief of the Naval Staff, as the case may be, to hear the accused in person or by any friend or counsel. 2[(5) The commanding officer of a 3[ship] or the officer -in-charge of a naval academy may impose on any subordinate officer whilst under training such minor punishments, not higher than the punishment of severe reprimand or reprimand, as may, from time to time, be prescribed.] (1) The Central Government may imp ose the punishment of forfeiture of time or seniority of not more than twelve months on any officer below the rank of commander. (2) The Chief of the Naval Staff may impose the punishment of forfeiture of time or seniority of not more than six months on a ny officer below the rank of commander. (2A) The Flag Officer Commanding -in-Chief of a naval command may, subject to regulations made under this Act, impose on any officer below the rank of commander one or more of th e following punishments, namely : (a) forfeiture of seniority in rank of not more than three months; (b) forfeiture of time for promotion of not more than three months; (c) severe reprimand or reprimand. (3) The commanding officer of a ship may subject to regulations made under this Act, impose the punishment of forfeiture of time or seniority of not more than three months on any subordinate officer. 95. Disciplinary Courts when may be constituted. When an officer is, in time of war or during active service, alleged to have been guilty of a disciplinary offence, that is to say of a breach of sections 41, 47, 48, 49, 51, 52, 68 and 74 or of any of those sections read with section 75 or 76, the officer having the power to order a court -martial may, if he considers the offence to be of such a character as not to necessitate trial by court -martial, in lieu of ordering a court -martial, order a disciplinary court constituted as hereinafter mentioned. 96. Constitution and procedure of disciplinary courts. (1) A disciplinary court shall be composed of not less than three nor more than five officers: 1. Subs . Act, 48 of 1982, s . 5, for and ( 2) (w.e.f. 1 6-10-1982). 2. Ins. by Act 53 of 1970, s. 16 (w.e.f. 16 -12-1974). 3. Subs. by s. 5, ibid., for training ship (w.e.f. 16 -10-1982). 34 Provided that the majority of the officers including the president shall be officers of the executive branch of the naval service. (2) At least one of these officers composing the court shall be superior in rank to the officer under trial and in any case shall be of the rank of substantive or acting commander or of a higher rank. (3) A disciplinary court shall have power to impose any punishment inferior to detention in the scale hereinbefore contained, bu t no greater punishment. (4) The officers composing the disciplinary court shall be named by the authority ordering the same or by an officer empowered in this behalf by such authority. (5) Subject to the provisions of the foregoing sub -sections, the proce dure and practice of courts - martial provided by or under this Act shall apply to the procedure and practice of disciplinary courts subject to such modifications as may be prescribed. 97. Constitution of courts -martial.(1) Courts -martial shall be constitut ed and convened subject to the provisions of the following sub -sections. (2) The President, the Chief of the Naval Staff, or any officer empowered in this behalf by commission from the Chief of the Naval Staff shall have the power to order courts -martial f or the trial of offences under this Act. (3) Unless otherwise prescribed in respect of any specified port or station, an officer holding a commission from the Chief of the Naval Staff to order courts -martial shall not be empowered to do so if there is pres ent at the place where such court -martial is to be held an officer superior in rank to himself and in command of one or more of the ships of the Indian Navy although such last mentioned officer may not hold a commission to order courts -martial and in such a case such last mentioned officer may order a court -martial although he does not hold a commission for the purpose. (4) If an officer holding a commission from the Chief of the Naval Staff to order courts -martial, having the command of a fleet or squadron and being outside Indian waters die, be recalled, leave his station or be removed from his command, the officer upon whom the command of the fleet or squadron devolves and so from time to time the officer who shall have the command of the fleet or squadron, shall without any commission from the Chief of the Naval Staff have the same power to order courts -martial as the first mentioned officer was invested with. (5) If a n officer holding a commission from the Chief of the Naval Staff to order courts -martial and having the command of any fleet or squadron of the Indian Navy outside Indian waters shall detach any part of such fleet or squadron, or separate himself from any part of such fleet or squadron he may by commission under his hand empower in the first mentioned case, the commanding officer of the squadron or detachment ordered on such separate service and in the case of his death or ceasing so to command, the officer to whom the command of such separate squadron or detachment shall belong, and in the second mentioned case, the senior officer of the ships of the Indian Navy on the division of the station from which he is absent, to order courts -martial during the time of such separate service or during his absence from that division of the station as the case may be, and every such authority shall continue in force until revoked or until the officer holding it returns to India or until he comes into the presence of a su perior officer empowered to order courts -martial in the same squadron, detachment or division of station but so that such authority shall revive on the officer holding it ce asing to be in the presence of such a superior officer and so from time to time as often as the case so requires. (6) A court -martial shall consist of not less than five nor more than nine officers. (7) No officer shall be qualified to sit as a member of a court -martial unless (a) he is subject to naval law , (b) he is an officer of the Indian Navy of the rank of lieutenant or higher rank, and (c) he is of or over twenty -one years of age. (8) A prosecutor shall not be qualified to sit on the court -martial for the trial of the person he prosecutes. 35 (9) The officer ordering the court -martial, the officer who was the commanding officer of the ship to which the accused belonged at the time of the commission of the alleged offence and the officer investigating the offence shall not be qualified to sit on a court - martial for the trial of such accused. (10) Subject to the provisions of sub -sections ( 7) to (9), officers of the Indian Navy shall be eligible to sit as members of a court -martial irrespective of the branch of the naval service to which they belo ng: Provided that (a) the majority of the members of the court -martial, including the president, shall be officers of the executive branch of the naval service, and (b) at trials for offences against sections 34, 35, 55, 1[55A, 55C] and 56, officers ot her than officers of the executive branch of the naval service shall not be eligible to sit. (11) A court -martial shall not be deemed to be duly constituted unless the members thereof are drawn from at least two ships not being tenders, and commanded by o fficers of the rank of lieutenant or higher rank. (12) The president of a court -martial shall be named by the authority ordering the same or by any officer empowered by such authority to name the president. (13) No court -martial for the tr ial of a flag officer shall be duly constituted unless the president is a flag officer and the other officers composing the court are of the rank of captain or of higher rank. (14) No court -martial for the trial of a captain shall be duly constituted unless the president is a captain or of higher rank and (15) No court -martial for the trial of a commander shall be duly constituted unless the president is a commander or of higher rank and two other members are commanders or officers of higher rank. (16) No court -martial for the trial of a person below the rank of commander shall be duly constituted unless the president is a substantive or acting commander or of higher rank. (17) No commander or lieutenant -commander or lieutenant shall be required to si t as a member of a court -martial when four officers of higher rank and junior to the president can be assembled at the place where the court -martial is to be held, but the regularity or validity of any court -martial or of the proceedings thereof shall not be affected by any commander, lieutenant -commander or lieutenant being required to sit or sitting thereon under any circumstances and when any commander, lieutenant - commander or lieutenant sits on any court - martial, the members of it shall not exceed five . (18) Members of the court -martial other than the president shall be appointed, subject to the provisions of the foregoing sub -sections, in the manner provided in sub -section ( 19). (19) Subject to the provisions of sub -section ( 11), the president shall summon all officers except such as are exempted under the provisions of sub -section ( 20), next in seniority to himself present at the place where the court -martial shall be held, to sit thereon until the number of nine or such other number not less than fi ve as is attainable is complete. (20) The officer convening the court -martial or the senior naval officer present at the place where the court -martial is to be held, may exempt by writing under his hand conveyed to the president of the court - martial any o fficer from attending as member on ground of sickness or urgent public duty. (21) In this section references to specified ranks of officers shall, unless otherwise stated, be deemed to be references to substantive ranks and to include references to equiva lent ranks in all branches of the naval service. (22) When the naval forces are on active service, officers of the Indian Naval Reserve Forces subject to naval law shall be eligible to sit as members of courts -martial on the same basis and under the same conditions as officers of the Indian Navy. 1. Ins. by Act 48 of 1982, s. 6 (w.e.f. 16 -10-1982). 36 CHAPTER XIII PROCEDURE Procedure of courts -martial 98. Where courts -martial to be held. A court -martial may be held ashore or afloat. 99. Trial judge advocate. (1) Every court -martial shall be attended by a person (in this Act referred to as the trial judge advocate) who shall be either a judge advocate in the department of the Judge Advocate -General of the Navy or any fit person appointed by the convening officer: Provided that in the case of a court -martial for t he trial of a capital offence the trial judge advocate shall be a person nominated by the Judge Advocate -General of the Navy unless such trial is held outside Indian waters. (2) The trial judge advocate shall administer oath to every witness at the trial a nd shall perform such other duties as are provided in this Act and as may be prescribed. 100. Courts -martial to be public. The place in which a court -martial is held for the purpose of trying an offence under this Act shall be deemed to be an open court to which the public generally may have access, so far as the same can conveniently contain them: Provided that, if the court is satisfied that it is necessary or expedient in the public interest or for the ends of justice so to do, the court may at any stage of the trial of any particular case order that the public generally or any portion thereof or any particular person shall not have access to, or be or remain in, the place in which the court is held. 101. Commencement of proceedings. (1) As soon as the co urt has been assembled the accused shall be brought before it and the prosecutor, the person or persons, if any, defending the accused and the audience admitted. (2) Except where the accused defends himself, he may be defended by such person or persons as may be prescribed. (3) The trial judge advocate shall read out the warrant for assembling the court and the names of officers who are exempted from attending under sub -section ( 20)
rant for assembling the court and the names of officers who are exempted from attending under sub -section ( 20) of section 97 together with the reasons for such exemption. (4) The trial j udge advocate shall read out the names of the officers composing the court and shall ask the prosecutor whether he objects to any of them. (5) If the prosecutor shall have made no objection or after any objection made by the prosecutor has been disposed of , the trial judge advocate shall ask the accused if he objects to any member of the court. 102. Objections to members. The following provisions shall apply to the disposal of objections raised by the pr osecutor as well as the accused : (a) any member may b e objected to on a ground which affects his competency to act as an impartial Judge; and the trial judge advocate may reject summarily without reference to the members of the court any objection not made on such ground; (b) objections to members shall be decided separately, those to the officer lowest in rank being taken first: provided that if the objection is to the President, such objection shall be decided first and all the other members whether objected to or not shall vote as to the disposal of the objection; (c) on an objection being allowed by one -half or more of the officers entitled to decide the objection, the member objected to shall at once retire and his place shall be filled up before an objection against another member is taken up; (d) should the president be objected to and the objection be allowed, the court shall adjourn until a new president has been appointed by the convening authority or by the officer empowered in this behalf by the convening authority; and 37 (e) should a memb er be objected to on the ground of being summoned as a witness and should it be found that the objection has been made in good faith and that the officer is to give evidence as to facts and not merely as to character, the objection shall be allowed. 103. F urther obj ections. (1) The trial judge advocate shall then ask the accused whether he has any further objections to make respecting the constitution of the court; and should the accused raise any such objection, it shall then be decided by the court, which decision shall be final and the constitution of the court -martial shall not be afterwards impeached and it shall be deemed in all respects to have been duly constituted. (2) If the accused should have no further objection to make to the constitution of the court or if any objection is disallowed, the members and the trial judge advocate shall then make an oath or affirmation in the form set out in section 104. 104. Administering oath or affirmation. (1) Before the court shall proceed to try the person charged, an oath or affirmation in the following form and manner shall be administered to the president and every member of the court -martial in the order of their senior ity by the trial judge advocate : I.................................. ....do swear in the name of God solemnly affirm that I will duly and faithfully and to the best of my ability, knowledge and judgment administer justice according to law, without fear or favour, affection or ill -will, and that I will not on any account at any time whatsoever disclose or discover the vot e or opinion of any particular member of this court -martial unless thereunto required in due course of law. (2) The trial judge advocate shall then be sworn or affirmed by the president in the following form: I......................................do swear in the name of God solemnly affirm that I will duly and faithfully and to the best of my ability, knowledge and judgment perfor m the duties of my office according to law, without fear or favour, affection or ill -will, and that I will not upon any account at any time whatsoever disclose or discover the vote or opinion of any particular member of this court -martial unless thereunto required in due course of law. 105. Arraignment. (1) When the court is ready to commence the trial, the trial judge advocate shall read out the charges and shall ask the accused whether he pleads guilty or not guilty. (2) If the accused pleads guilty, the n, before such plea is recorded, the trial judge advocate shall ensure that the accused understands the charge to which he has pleaded guilty and the difference of procedure which will result from the plea of guilty. (3) If it appears from the accused s replies or from the summary of evidence prepared in the prescribed manner that he should not plead guilty, the trial judge advocate may advise the accused to withdraw his plea. (4) If the court accepts the plea of guilty, it shall be recorded as the finding of the court and the court shall proceed to take steps to pass sentence unless there are other charges to be tried in which event the sentence shall be deferred until after the findings on such charges are given. 106. Opening of prosecution case. (1) If the accused pleads not guilty or refuses to, or does not, plead or if he claims to be tried or if in the circumstances mentioned in sub -section ( 3) of section 105 withdraws the plea of guilty or if the court does not accept the plea of guilty, the court sh all proceed to try the accused. (2) The prosecutor shall open his case by reading the circumstantial letter prepared in accordance with the regulations made under this Act, reading from this Act or the Indian Penal Code (45 of 1860) or other law the descri ption of the offence charged and stating shortly by what evidence he expects to prove the guilt of the accused. (3) The prosecutor shall then examine his witnesses. 107. Calling of prosecution witness not in the original list. No witness whose name was not included in the original list of witnesses supplied to the trial judge advocate and the accused in accordance with regulations made under this Act shall be called by the prosecutor unless the trial judge 38 advocate has given notice to the accused of the pro secutor s intention to call such witness and has supplied the accused with a summary of the evidence of such witness. 108. Swearing of interpreter and shorthand -writer.(1) At any time during the trial, should the court think it necessary, an impartial per son may be employed to serve as an interpreter and sworn or affirmed as such in the following manner: I........................... ...........do swear in the name of God solemnly affirm that I will to the best of my ability truly interpret and translate as I will be required to do touching the matter before this court -martial. (2) During the trial, an impartial person shall be employed as a shorthand -writer a nd duly sworn or affirmed as such in the following manner : I......................................do swear in the name of God solemnly affirm that I will truly take down to the best of my power the evidence to be given before this court -martial and such other matters as I will be required, and when required, will deliver to the court a true transcript of the same. 109. Objection to interpreter or shorthand -writer.(1) Before any person is sworn or affirmed as an interpreter or a shorthand -writer, the accused shall be asked if he objects to such person as not being impartial and the court shall decide the objection. (2) The evidence given by a witness shall be read over to him by the shorthand -writer before the witness leaves the court, if so required by the court or the witness. 110. Swearing of witnesses. (1) No witness shall be examined until he has been duly sworn or affirmed in the following manner: I........................... ...........do swear in the name of God solemnly affirm that the evidence which I shall give before this court shall be the truth, the whole truth and nothing but the truth. . (2) Every person giving evidence on oath or affirmation before a court -martial shall be bound to state the truth. 111. Plea of no case and def ence of accused. (1) When the examination of the witnesses for the prose cution is concluded, the accused shall be called on for his defence. (2) Before entering on his defence, the accused may raise a plea of no case to answer. (3) If such a plea is raided, the court will decide the plea after hearing the accused and the prose cutor and the advice of the trial judge advocate. (4) If the court accepts the plea, the accused shall be acquitted on the charge or charges in respect whereof the plea has been accepted. (5) If the court overrules the plea, the accused shall be called upo n to enter on his defence. (6) The trial judge advocate shall then inform the accused that he may give evidence as a witness on his own behalf should he desire to do so and should he make a request in writing to do so, but that he will thereby render himse lf liable to cross -examination. (7) If the accused does not apply to give evidence, he may make a statement as to the facts of the case, and if he has no defence witnesses to examine as to facts, the prosecutor may sum up his case and the accused shall be entitled to reply. (8) If the, accused or any one of the several accused applies to give evidence and there are no other witnesses in the case for the defence, other than witnesses as to character, then the evidence of such accused shall be recorded and if the accused so desires the witnesses as to character shall be examined and the prosecutor shall then sum up his case and the accused may reply. (9) If the accused or any one of the accused adduces any oral evidence as to facts other than his own evidence, if any, the accused may then sum up his case on the conclusion of that evidence and the prosecutor shall be entitled to reply. 39 112. Adjournment to view. (1) Whenever the court thinks that it should view the place in which the offence charged is alleged to have been committed or any other place in which any other transaction material to the trial is alleged to have occurred, the court shall make an order to that effect and may then adjourn to the place to be viewed, along with the prosecutor and the accused and the person, if any, by whom the accused is represented. (2) The court on completion of the view shall adjourn and reassemble in the court -room. 113. Summing up by the trial judge advocate. When the case for the defence and the prosecutor s reply, if a ny, are concluded, the trial judge advocate shall proceed to sum up in open court the evidence for the prosecution and the defence and lay down the law by which the court is to be guided. 114. Duties of the trial judge advocate. (1) At all trials by courts -martial it is the duty of the trial judge advocate to decide all questions of law arising in the course of the trial, and specially all questions as to the relevancy of facts which it is proposed to prove and the admissibility of evidence or the pro priety of the questions asked by or on behalf of the parties; and in his discretion to prevent the production of inadmissible evidence whether it is or is not objected to by the parties. (2) Whenever in the course of a trial it appears desirable to the tri al judge advocate that arguments and evidence as to the admissibility of evidence or arguments in support of an application for separate trials or on any other points of law should not be heard in the presence of the court, he may advise the president of t he court accordingly and the president shall thereupon make an order for the court to retire or direct the trial judge advocate to hear the arguments in some other convenient place. 115. Duties of the court. It is the duty of the court to decide which view of the facts is true and then arrive at the finding which under such view ought to be arrived at. 116. Retirement to consider finding. (1) After the trial judge advocate has finished his summing up, the court will be cleared to consider the finding. (2) The trial judge advocate shall not sit with the court when the court is considering the finding, and no person shall speak to or hold any communication with the court while the court is considering the finding. 117. Announcement of the finding. (1) When the court has considered the finding, the court shall be re -assembled and the president shall inform the trial judge advocate in open court what is the finding of the court as ascertained in accordance with section 124. (2) The court shall give its findings o n all the charges on which the accused is tried. 118. Drawing up of the finding. (1) The trial judge advocate shall then draw up the finding as announced by the court. (2) The finding so drawn up shall be signed by all the members of the court by way of at testation notwithstanding any difference of opinion there may have been among the members and shall be countersigned by the trial judge advocate. (3) Where the finding on any charge is one of not guilty the court shall acquit the accused of that charge. (4) If the accused is acquitted of all the charges, the court shall, after signing the findings as provided in sub -section ( 2), be dissolved. (5) Neither the court nor the trial judge advocate shall announce in open court whether the findin g was unanimous or not; but the president shall make a record of the division of voting on each finding without disclosing the vote or opinion of any particular member of the court -martial and such record shall be communicated to the trial judge advocate f or transmission to the Judge Advocate -General of the Navy. 119. Evidence of character and previous convictions. (1) If the accused is found guilty on any or all of the charges, the court before awarding punishment may call evidence as to the previou s chara cter and qualifications o f the accused and in addition to any oral evidence of general character that may be 40 adduced, shall take into consideration the following documents which shall be read by the trial judge advocate in open court: (a) for any officer (i) any entries against him relating to his previous convictions in the list of officers who have been tried by court -martial; and (ii) any previous entries against him in the log of the ship to which he may have belonged when the offence or offences for which he is being tried were committed and also any documents, other than such entries in the log, of the nature of a definite censure by superior authority, which log and documents the prosecution is to produce; and (iii) any certificate or other document s of character which the accused may produce; (b) for a 1[sailor] (i) the entries against him in the conduct and offences record sheets prior to the date of the offence charged, but subsequent to his joining his present ship, with character assessed from the previous 31st day of December to the date of the offence for which he may be under trial but excluding all consideration of the latter; (ii) his certificate of service; and (iii) any entries against him relating to his previous convictions in the list of those who have been tried by court -martial. (2) The accused may then make a statement in mitigation of punishment and lead any evidence of character if he has not already done so before the finding. 120. Consideration of the sentence. (1) The Court shal l then retire and consider and
done so before the finding. 120. Consideration of the sentence. (1) The Court shal l then retire and consider and determine on the punishment proper to be inflicted in conformity with the finding, and all the members of the court, whether they have voted for an acquittal or not, shall vote on the question of what punishment is proper to be awarded for the offence of which the accused has been found guilty. (2) The trial Judge advocate shall sit with the court while they are considering the sentence and assist the court in the determination of the sentence but shall not vote thereon. 121. Announcement of the sentence. (1) When the court has decided on the sentence whether unanimously o r by majority, the trial Judge advocate shall draw up the sentence in the prescribed form which shall be signed by every member of the court by way of attesta tion notwithstanding any difference of opinion there may have been among the members and shall be countersigned by the trial Judge advocate. (2) The court shall then be reassembled and the accused brought in and the trial Judge advocate shall by direction of the court pronounce the sentence. (3) The accused shall then be removed and the court dissolved. 122. Adjournment. (1) A court -martial may, if it appears to the court that an adjournment desirable, be adjourned accordingly, but except where such an adjo urnment is ordered, shall sit from day to day with the exception of Sundays until the trial is concluded, unless prevented from so doing by stress of weather or unavoidable accident. (2) The proceedings of a court -martial shall not, after the commencement of a trial, be delayed by the absence of a member: Provided that not less than four members are present : and Provided further that if any member is absent from any part of the trial, he shall not thereafter take any part in the proceedings. 1. Subs. by Act 53 of 1974, s. 2, for seam an (w.e.f. 16 -12-1974). 41 123. Provisions relating to dissolution of court s-martial.(1) A court -martial assembled under this Act shall be dissolved (a) when the number of members comprising the court is after the commencement of a trial reduced below four ; (b) by the prolonged illness of the pr esident, trial judge advocate or the accused; (c) by the death of the president or the trial judge advocate; (d) on the making of a report under sub -section ( 2) of section 143. (2) Whenever a court -martial is dissolved by virtue of sub -section ( 1), the accused may be retired. 124. Ascertaining the opinion of the court. (1) Subject to the provisions of sub -sections (2) and (3), every question for determination by a court -martial shall be decided by the vote of the majority: Provided that where there is an equality of votes, the decision most favoura ble to the accused shall prevail. (2) The sentence of death shall not be passed on any offender unless four at least of the members present at the court -martial where the number does not exceed five, and in all other cases a majority of not less than two -thirds of the members present, concur in the sentence. (3) Where in respect of an offence, the only punishment which may be awarded is death, a finding that a charge for such offence is proved sh all not be given unless four at least of the members present at the court -martial where the number does not exceed five, and in all other cases a majority of not less than two-thirds of the members present, concur in the finding. 125. Finding that the offe nce was committed with intent involving less degree of punishment. Where the amount of punishment for any offence depends upon the intent with which it has been committed and any person is charged with having committed such an offence with an intent involving a greater degree of punishment, a court -martial may find that the offence was committed with an intent involving less degree of punishment and award such punishment accordingly. 126. Alternative findings. If the accused is charged with one offence and it appears in evidence that he committed a different offence for which he might have been charged under section 91, he may be convicted of the offence which he is shown to have committed although he was not charged with it. 127. Finding lesser offence proved on charge of greater offence. (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence and such combination is proved, but the remaining particu lars are not proved, he may be convicted of the minor offence although he was not charged with it. (2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he wa s not charged with it. (3) When a person is charged with an offence, he may be convicted of an attempt to commit such an offence, although the attempt is not separately charged. 128. Transmission of proceedings to the Judge Advocate General of the Navy. The trial Judge advocate shall transmit in accordance with the prescribed procedure with as much expedition as may be, the original proceedings or a complete and authenticated copy thereof and the original sentence of every court -martial attended by him to t he Judge Advocate General of the Navy to be dealt with by him in accordance with the provisions of Chapter XV. 129. Right of accused to copy of proceedings and sentence. Every person tried by a court -martial and convicted shall be entitled on demand to one copy of the proceedings and sentence of such court - martial free of cost but no such demand shall be allowed after the lapse of one year from the date of the final decision of such court. Rules as to evidence 130. Application of the Evidence Act. Subject to the provisions of this Act, the Indian Evidence Act, 1872 (1 of 1872) , shall apply to all proceedings before a court -martial. 42 131. Accused competent witness for def ence. A person of an offence before a court -martial shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged toge ther with him at the same trial : Provided that (a) he shall not be called as a witness except on his own request in writing ; or (b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the court or give rise to any presumption against himself or any person charged together with him at the same trial. 132. Judicial notice. A court -martial may take judicial notice of any matter within the general naval, army or air force experience and knowledge of the members. 133. Presumption as to certain documents. (1) Whenever it is necessary for the purposes of either the prosecution or the defence to prove the content s of any voucher, receipt, account, muster, ship s book, letter, signal, telegram or other document made or kept in pursuance of any Act of the legislature, any regulations framed under this Act or of the custom of the service, a copy of the same purportin g to be signed and certified as a correct copy by the officer for the time being commanding the ship in which the same was made or kept or by a Secretary to the Central Government, may be received as evidence of such document and of the matters, transactio ns and accounts therein recorded. (2) A Navy List or Gazette or other official document purporting to be published by authority of the Central Government or the Chief of the Naval Staff shall be evidence of the status and rank of officers therein mentioned and of any appointment held by such officers until the contrary is proved (3) Where it is shown that a person is borne on the books of a ship of the Indian Navy, such fact shall be evidence that such person is subject to naval law until the contrary is proved. Explanation. In this section, the term books of a ship shall include any official book, document or list purporting to contain the name or names of persons appointed to the ship. (4) Where any person subject to naval law is being tried on a char ge of desertion, improperly leaving his ship, or absence without leave and such person has surrendered himself into custody of or has been apprehended by any person subject to naval law or by a person subject to the law relating to the Government of the re gular Army or the Air Force, a certificate purporting to be signed by such person and stating the fact, date and place of such surrender or apprehension shall be evidence of the matters so stated unless the contrary is proved. (5) Where any person subject to naval law is being tried on a charge of desertion, improperly leaving his ship, or absence without leave and such person has on arrest or surrender been taken to a police station, a certificate purporting to be signed by the officer -in-charge of the sta tion and stating the fact, date and place of such surrender or apprehension shall be evidence of the matters stated unless the contrary is proved. 1[(6) Any document purporting to be a report under the hand of: (a) any Chemical Examiner or Assistant Chemi cal Examiner to the Government; (b) the Chief Inspector of Explosives; (c) the Director of Finger Print Bureau; (d) the Director of Haffkeine Institute, Bombay; (e) the Director, Deputy Director or Assistant Director of a Central Forensic Science Laborator y or a State Forensic Science Laboratory; (f) the Serologist to the Government, uponany matter or thing duly submitted to him for examination or analysis, may be used an evidence in any proceeding under this Act. ] 1. Subs. by Act 23 of 2005, s. 5, for sub -section ( 6) (w.e.f. 23 -6-2005). 43 (7) The statement of a naval, army or air force medical officer taken and attested by the commanding officer of a ship or establishment may be given in evidence in any proceeding under this Act: Provided that the court may, if it thinks fit, and shall if so required by the prosecutor or the accused, summon and examine such medical officer as to the subject -matter of his statement. (8) If it is proved that an offender under this Act has absconded and that there is no immediate prospect of arresting him, the commanding officer or other prescrib ed person may, in his absence, examine any person who might appear to him to be acquainted with the case and record their depositions on oath and any such deposition may on the arrest of such person be used in evidence against him in any proceeding under t his Act, if the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay, expense or inconvenience which under the circumstances of the case would be unreasonable. 134. Summoning of witnesses. (1) Eve ry person who may be required to give evidence or produce a document before a court -martial shall be summoned in the prescribed manner in writing under the hand of the Judge Advocate General of the Navy or the trial judge advocate. (2) Every person who may be required to give evidence before a commanding officer or the officer preparing a summary of evidence in accordance with the regulations made under this Act or before a board of inquiry shall be summoned in the prescribed manner by writing under the han d of the Judge Advocate General of the Navy or the senior officer in the station or such other officer prescribed in this behalf. (3) In the case of a witness subject to naval law or to the law relating to the Government of the regular Army or the Air Force, the summons shall be served in the manner prescribed. (4) In the case of any other witness, the summons shall be served either in the prescribed manner, or it shall be sent to the magistrate within whose jurisdiction the witness may be or resides and such magistrate shall give effect to the summons as if the witness were required in the court of such magistrate. (5) When a witness is required to produce any particular document or thing in his possession or power, the summons shall describe it with reasonable precision. (6) Every person not subject to naval law who may be summoned as aforesaid shall be allowed and paid such reasonable expenses as may be prescribed. (7) Nothing in this section shall be deemed to affect the operation of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872) , or to apply to any document in the custody of the postal or telegraph authorities. 135. Commissions for examination of witnesses. (1) Whenever in the course of a trial by court - martial, it appears to the trial judge advocate that the examination of a witness is necessary for the ends of justice and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which under the circumstances of the case would be unreasonable, the trial judge advocate may dispense with such attendance and may apply to the Judge Advocate General of the Navy to issue a commission to 1[any metropolitan magistrate or judicial magistrate of the first class] within the loca l limits of whose jurisdiction such witness resides, to take the evidence of such witness. (2) The trial in such an event may be adjourned for a specified time reasonably sufficient for the execution and return of the commission. (3) The Judge Advocate Gen eral of the Navy on receipt of an application under sub -section (1) may, if he thinks fit, issue a commission to the 2[metropolitan magistrate or judicial magistrate of the first class or an authority exercising the powers equivalent to those of a judicial magistrate of the first class under the Code of Criminal Procedure, 1973 (2 of 1974) ,] for the examination of the witness. 1. Subs. by Act 48 of 1982, s. 7, for any district magistrate or a magistrate of the first class (w.e.f. 16 -10-1982). 2. Subs by s. 7, ibid., for certain words and figures (w.e.f. 16 -10-1982). 44 (4) The magistrate or authority to whom the commission is issued or 1[if he is a Chief Metropolitan Magistrate or a Chief Judicial Magistrate, he or such metropolitan magistrate or judicial magistrate of the first class as is appointed by him in this behalf] shall proceed to such place where the witness is or shall summon the witness before him and shall take down his evidence in the same manner and may for this purpose exercise the same powers as in trials of warrant cases under the 2[Code of Criminal Procedure, 1973 (2 of 1974) ], or of any corresponding law in force at the place where the evidence is recorded. 136. Examination of wit nesses on commission. (1) Where a commission is issued under the provisions of section 135, the prosecutor and the accused may respectively forward any interrogatories in writing which the trial judge advocate may think relevant to, the issue and the magis trate or authority to whom the commission is
writing which the trial judge advocate may think relevant to, the issue and the magis trate or authority to whom the commission is directed or to whom the duty of executing such commission has been delegated shall examine the witness upon such interrogatories. (2) The prosecutor and the accused may appear before such magistrate or authority by counsel or, except in the case of an accused person in custody, in person, and may examine, cross -examine arid re - examine, as the case may be, the said witness. (3) After a commission issued under section 135 has been duly executed, it shall be returne d together with the deposition of the witness examined thereunder to the Judge Advocate General of the Navy who issued the commission. (4) On receipt of the commission and the deposition returned under sub -section ( 3), the Judge Advocate General of the Nav y shall forward the same to the trial judge advocate at whose instance the commission was issued. (5) The commission, the return thereto and the deposition shall be open to inspection by the prosecutor and the accused and may subject to all just exceptions be read in evidence in the case by either the prosecutor or the accused and shall form part of the proceedings of the trial. (6) Any deposition so taken shall be received in evidence at any subsequent stage of the trial whether before the same court or, i f the said court is dissolved meanwhile, before another court convened for the trial of the accused in respect of the same charges. 137. Power to summon and examine material witnesses. (1) The trial judge advocate may, at any stage of the trial, summon any person as a witness or examine any person in attendance, though not summoned as a witness, or recall and re -examine any person already examined; and the trial judge advocate shall summon and examine or recall and re -examine any such person if his evidence appears to the court or to the trial judge advocate as essential to the just decision of the case. (2) Summons to the witnesses shall be issued as provided under this Act. Compensation to aggrieved persons out of fine 138. Power of court to pay compensati on out of fine. (1) Whenever a court -martial imposes a fine as a punishment, the court may when passing judgment order the whole or any part of the fine recovered to be applied, (a) in the payment to any person aggrieved as compensation for any loss or injury caused by the offence; (b) When any person is convicted of any civil offence which includes theft, criminal misappropriation, criminal breach of trust or cheating or of having dishonestly received or retained or of having voluntarily assisted in dis posing of stolen property knowing or having reason to believe the same to be stolen property, in compensating any bona fide purchaser of the property for the loss of the same if such property is restored to the possession of the person entitled thereto. (2) No such payment or compensation shall, however, be made before the expiry of fifteen days from the date of the sentence, and when a petition is presented against the conviction or sentence until the said petition is disposed of Power of courts -martial re specting contempt, etc. 1. Subs. by Act 48 of 1982, s. 7, for certain words (w.e.f. 16 -10-1982). 2. Subs. by s. 7, ibid., for Code of Criminal Procedure, 1898 (5 of 1898) (w.e.f. 16 -10-1982). 45 Power of courts -martial respecting contempt, etc. 139. Summary punishment for contempt of court by person subject to naval law. When any person subject to naval law commits any offence as is described in section 69 in the presence of or in relation to a proceeding before a court -martial such court -martial may punish the offender summarily by imprisonment for a term which may extend to three months or such other less punishment as may be awarded for that offence under section 69. 140. Summary punishment for contempt of court by person not subject to naval law. When any person not subject to naval law commits an offence as is described in section 165 in the presence of a court -martial, such court -martial may take such person into custo dy and at any time before the rising of the court on the same day, if it thinks fit, take cognizance of the offence and sentence the offender to fine not exceeding two hundred rupees or in default of payment to simple imprisonment for a term which may extend to one month, unless such fine shall be sooner paid. 141. Powers of court -martial when certain offences are committed by persons not subject to naval law. When any such offence as is described in section 165 of this Act, or section 193, section 194, sec tion 195, section 196, section 199, section 200, section 228, section 463 or section 471 of the Indian Penal Code (45 of 1860) is committed by any person not subject to naval law in or in relation to a proceeding before a court -martial, such court -martial or the off icer ordering the same if such court -martial is dissolved, may exercise the powers 1[under section 340 of the Code of Criminal Procedure, 1973 (2 of 1974), ] as if it or he were a criminal court within the meaning of that section. 142. Powers of c ourts -martial and disciplinary courts in relation to proceedings under this Act.Any trial by a court -martial or disciplinary court under the provisions of this Act shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code (45 of 1860) , and the court -martial or disciplinary court shall be deemed to be a court within the meaning of 2[sections 345 and 346 of the Code of Criminal Procedure, 1973 (2 of 1974) .] Lunacy of accused 143. Accused fou nd insane during trial. (1) Where it appears in the course of the trial by court - martial of any person, charged with an offence that such person is insane, the court shall find specially the fact of his insanity and shall order such person to be kept in st rict custody in such place and in such manner as the court may deem fit until the directions of the Central Government thereupon are known. (2) Every such case shall be reported by the court to the convening authority for orders of the Central Government a nd it shall be lawful for the Central Government to give orders for the safe custody of such person in such place and in such manner as the Central Government may deem fit. (3) Whenever on the receipt of a report from the Central Government or otherwise th e convening authority considers that such person is capable of making his defence, the convening authority may take steps to convene a court -martial for the trial of such person. 144. Lunacy of the accused at the time of offence .(1) Whenever any person subject to naval law is acquitted upon the ground that, at the time at which he is alleged to have committed an offence, he was, by reason of unsoundness of mind, incapable of knowing the nature of the act alleged as constituting the offence, or that it wa s wrong or contrary to law, the finding shall specifically state whether he committed the act or not. (2) Whenever the finding made under sub -section ( 1) states that the accused person committed the act alleged, the court -martial shall, if such act would, but for the incapacity found, have constituted an offence, order such person to be detained in safe custody in such place and in such manner as may be prescribed and shall report the action taken to the officer convening the court. 1. Subs. by Act 48 of 1982, s. 8, for under section 476 of the Code of Criminal Procedure, 1898 (5 of 1898) (w.e.f. 16 -10-1982). 2. Subs by s . 9, ibid., for under sections 480 and 482 of the Code of Criminal Procedure Code, 1898 (5 of 1898) (w.e.f. 16 -10-1982). 46 (3) The officer convenin g the court shall then report the case for the orders of the Central Government and shall take necessary steps to detain the said person in safe custody pending receipt of such orders. (4) The Central Government may on receipt of a report under sub -section (3) order the accused person to be detained in a mental hospital or other suitable place of safe custody. Disposal of property 145. Disposal of property pending trial .When any property regarding which an offence appears to have been committed or which appears to have been used for the commission of an offence is produced before a court -martial, the court may make such order as it thinks fit for the proper custody such property pending the conclusion of the trial and if the property is subject to speedy or natural decay may after recording such evidence as it thinks necessary order it to be sold or otherwise disposed of. 146. Disposal of property regarding which offence is committed .(1) When the trial before any court -martial is concluded, the court may make such order as it thinks fit for the disposal by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise of any property or document produced before it or in its custody or regarding which an offen ce appears to have been committed or which has been used fo r the commission of any offence : Provided that except in the case of property which is subject to speedy or natural decay such property or document shall, if so required by regulations, made under this Act, be kept in custody until the orders of the Chief of the Naval Staff are known. (2) An order under sub -section ( 1) shall not be carried out for one month, unless the property is subject to speedy or natural decay. (3) When an order under this sect ion cannot be conveniently carried out by persons in the naval service, a copy of such order certified by the Chief of the Naval Staff or an officer prescribed in this behalf, may be sent to a magistrate within whose jurisdiction the property is for the ti me being situate and such magistrate shall thereupon take steps to cause the order to be carried into effect as if it were an order passed by him. Explanation. In this section the term property includes, in the case of property regarding which an offenc e appears to have been committed, not only such property as has been originally in the possession or under the control of any person, but also any property into or for which the same may have been converted or exchanged and anything acquired by such conver sion or exchange whether immediately or otherwise. CHAPTER XIV EXECUTIVE OF SENTENCES 147. Form of sentence of death .In awarding a sentence of death, a court -martial shall in its discretion direct that the offender shall suffer death by being hanged by the neck until he be dead or shall suffer death by being shot to death. 148. Interim custody until execution of sentence s of death .A person sentenced to death may be detained in naval custody or may be removed to a civil prison to be kept in custody until further orders be received from the Central Government, the Chief of the Naval Staff or the officer ordering the court - martial by which he was sentenced to death or ot her prescribed officer and the order in the prescribed form of the Central Government, the Chief of the Naval Staff or the convening authority or such officer shall be sufficient warrant for detaining the person in custody. 149. Execution of sentences of d eath.(1) When a sentence of death is to be executed, the Chief of the Naval Staff or the convening authority or the prescribed officer shall give directions as to the time, place and manner in which sentence is to be carried out and the order of such offi cer or authority in the prescribed form shall be sufficient warrant for the execution of such sentence. (2) There shall be attached to the prescribed form an order of the Central Government certifying the confirmation of the sentence by the Central Governm ent in all cases where such confirmation is 47 necessary; and where such confirmation is not necessary, a certificate of the Chief of the Naval Staff or other prescribed officer stating that such confirmation is not necessary. 150. Place of imprisonment and d etention .(1) Every term of imprisonment whether imprisonment was awarded as an original or commuted punishment may be served in a naval prison, naval detention quarters or in any civil prison, house of correction or military or air force prison or detenti on barracks. (2) Every term of detention whether the detention was awarded as an original or commuted punishment may be served in any naval detention quarters or army or air force detention barracks. (3) Where in pursuance of this Act, a person is sentence d to imprisonment or detention or has his sentence commuted to imprisonment or detention, the order in the prescribed form of the Central Government or the Chief of the Naval Staff or the officer ordering the court -martial by which such person was sentence d or the senior officer present in port or, if he was sentenced by the commanding officer of a ship, or other officer empowered under this Act to exercise like powers, the order in the prescribed form of such commanding officer or other officer, shall be a sufficient warrant for the sending of such person to the place of imprisonment or detention, as the case may be, thereto undergo the sentence according to law, or until he reaches such place of imprisonment or detention for detaining him in naval custody or in the case of a person sentenced to imprisonment, in any civil prison or place of confinement. 151. Commencement of sentence .(1) Subject to the provisions of 1[sub-section s (2) and ( 3)] every term of imprisonment or detention awarded in pursuance of this Act shall be reckoned as commencing on the day on which the sentence was awarded. (2) Where by reason of a ship being at sea or off a place at which there is no proper prison or naval detention quarters, a sentence of imprisonment or detention, as the case may be, cannot be duly executed, then subject as hereinafter mentioned, an offender under the sentence of imprisonment or detention, as the case may be, may be sent with all reasonabl e speed to some place at which there is a proper prison or naval detention quarters or in the case of an offender under sentence of detention to some place at which there are some naval detention quarters in which the sentence can be duly executed; and on arrival there, the offender shall undergo his sentence in like manner as if the date of such arrival were the day on which the sentence was awarded and notwithstanding that in the meanwhile he has returned to his duty or become entitled to his discharge; a nd the term of imprisonment or detention, as the case may be, shall be reckoned accordingly, subject however to the deduction of any time during which he has been kept in confinement in respect of the said offence. 2[(3) Whenever any offender is sentenced by a court -martial to a term
ement in respect of the said offence. 2[(3) Whenever any offender is sentenced by a court -martial to a term of imprisonment, in pursuance of this Act, not being imprisonment in default of payment of fine, the period spent by him in civil or naval custody during investigation, inquiry or trial of the same case, and before the date o f order of such sentence, shall be set off against the terms of imprisonment imposed upon him, and the liability of such offender to undergo imprisonment on such order of sentence shall be restricted to the remainder, if any, of the term of imprisonment impo sed upon him. ] 152. Imprisonment of offender already under sentence .Whenever a sentence shall be passed by a court -martial on an offender already under sentence either of detention or imprisonment passed upon him under this Act for a former offence, the court may award a sentence of detention or imprisonment for the offence for which he is under trial to commence at the expiration of the sentence of detention or imprisonment to which h e has been previously sentenced : Provided that so much of any term of d etention imposed on a person by a sentence in pursuance of this section as will prolong the total term of detention beyond two years shall be deemed to be remitted. 153. Change of place of confinement .Whenever it is deemed expedient, it shall be lawful fo r the Central Government, the Chief of the Naval Staff or senior officer present, by an order in writing in the prescribed form, from time to time to change the place of confinement of any offender imprisoned or 1. Subs. by Act 23 of 2005, s. 6, for sub -section ( 2) (w.e.f. 23 -6-2005). 2. Ins. s. 6 , ibid. (w.e.f. 23 -6-2005). 48 sentenced to be imprisoned or detained in pu rsuance of this Act or of any offender undergoing or sentenced to undergo detention; and the gaoler or other person having the custody of such offender shall immediately on the receipt of such order remove such offender to the gaol, prison or house of corr ection or, in the case of an offender undergoing or sentenced to undergo detention, to the naval detention quarters mentioned in the said order, or shall deliver him over to naval custody for the purpose of the offender being removed to such prison or nava l detention quarters, and every gaoler or keeper of such last-mentioned prison, gaol, or house of correction or naval detention quarters shall, upon being furnished with such order of removal, receive into his custody and shall confine pursuant to such sen tence or order every such offender. 154. Discharge or removal of prisoners .Whenever any offender is undergoing imprisonment or detention in pursuance of this Act, it shall be lawful for the Central Government or the Chief of the Naval Staff, or where an o ffender is undergoing imprisonment or detention by order of his commanding officer, for such commanding officer or the Central Government or the Chief of the Naval Staff, to give an order in writing in the prescribed form directing that the offender be dis charged; and it shall also be lawful for the Central Government and the Chief of the Naval Staff, by order in writing in the prescribed form, to direct that any such offender be delivered over to naval custody for the purpose of being brought before a court-martial, either as a witness or for trial or otherwise, and such offender shall accordingly, on the production of any such order, be discharged, or be delivered over to such custody. 155. Time of detention in naval custody .The time during which any offe nder under sentence of imprisonment or detention is detained in naval custody shall be reckoned as imprisonment or detention under his sentence for whatever purpose he is so detained; and the governor, gaoler, keeper or superintendent who shall deliver ove r any such offender shall again receive him from naval custody, so that he may undergo the remainder of his punishment. 156. Removal of insane prisoners .If any person imprisoned or undergoing detention by virtue of this Act shall become insane, and a certificate to that effect shall be given by two physicians or surgeons, the Central Government shall, by warrant in the prescribed form, direct the removal o f such person to such asylum or other proper receptacle for insane persons in India as it may judge proper for the unexpired term of his imprisonment or detention; and if any such person shall in the same manner be certified to be again of sound mind, the Central Government may issue a warrant in the prescribed form for his being removed to such prison or place of confinement or in the case of a person sentenced to detention, such naval detention quarters as may be deemed expedient, to undergo the remainder of his punishment, and every gaoler or keeper of any prison , gaol, or house of correction shall receive him accordingly. 157. Naval prisons and naval detention quarters .The Central Government may set apart any buildings or vessels or any parts thereof as naval prisons or naval detention quarters and any buildings, vessels or parts of buildings or vessels so set apart as naval prisons or naval detention quarters, as the case may be, shall be deemed to be naval prisons or naval detention quarters respective ly within the meaning of this Act. 158. Execution of sentence of fine .When a sentence of fine is imposed under this Act by a court - martial or disciplinary court, the officer ordering the court -martial or disciplinary court may transmit a copy of the order imposing the fine duly certified under his hand to any magistrate in India, and such magistrate shall thereupon cause the fine to be recovered in accordance with the provisions of the 1[Code of Criminal Procedure, 1973 (2 of 1974) ,] or any law corresponding thereto in force in the State of Jammu and Kashmir * as if it were a sentence of fine imposed by such magistrate. 159. Power to make regulations in respect of naval prisons and detention quarters. (1) The Central Government may, by notification in the Official Gazette, make regulations providing, (a) for the government, management and regulation of naval prisons and detention quarters; (b) for the appointment and removal and powers of inspectors, visitors and officers thereof; 1. Subs. by Act 48 of 1982, s. 10, for Code of Criminal Procedure, 1898 (5 of 1898) (w.e.f. 16 -10-1982). *. Vide notification No . S.O. 3912(E), dated 30th October, 2019, this Act is made applicable to the Union territory of Jammu and Kashmir and the Union territory of Ladakh. 49 (c) for the food, bedding and clothing of prisoners or persons undergoing detention therein; (d) for the labour of such prisoners or persons therein and for enabling such prisoners or persons to earn by special industry and good conduct remission of a portion o f their sentence; and (e) for the care of such prisoners or persons, their safe custody and the maintenance of good order and discipline among them and the punishment by personal correction, restraint or otherwise of offences committed by such prisoners or persons. (2) The regulations to be made under this section may apply to naval prisons or detention quarters any of the provisions of the Prisons Act, 1894 (9 of 1874) , and rules made thereunder, imposing punishments on any persons not being prisoners or r elating to the duties of gaolers, medical officers and other officers of the prisons. (3) The regulations to be made under this section shall not authorise corporal punishment to be inflicted for any offence. CHAPTER XV JUDIC IAL REVIEW OF COURTS -MARTIAL PROCEEDINGS 160. Judicial review by the Judge Advocate General of the Navy. (1) All proceedings of trials by court -martial or by disciplinary courts shall be reviewed by the Judge Advocate General of the Navy either on his own motion or on application made to him within the prescribed time by any person aggrieved by any sentence or finding, and the Judge Advocate General of the Navy shall transmit the report of such review together with such recommendations as may appear just and proper to the Chief of the Naval Staff for his consideration and for such action as the Chief of the Naval Staff may think fit. (2) Where any person aggrieved has made an application under sub -section (1), the Judge Advocate General of the Navy may, if the circumstances of the case so require, give him an opportunity of being heard either in person or through a legal practitioner or an officer of the Indian Navy. 161. Consideration by the Chief of the Naval Staff. (1) On receipt of the report and recommendations if any, under section 160, the Chief of the Naval Staff shall in all cases of capital sentence and in all cases where the court -martial is ordered by the President, and may in other cases transmit the proceedings and the report to the Central Government together with such reco mmendations as he may deem fit to make. (2) Nothing in section 160 or this section shall authorise the Judge Advocate General of the Navy or the Chief of the Naval Staff to make any recommendation for setting aside, or the Central Government to set aside, an order of acquittal passed under this Act. CHAPTER XVI MODIFICATIONS OF FINDINGS AND SENTENCES, PARDONS AND COMMUTATION , REMISSION AND SUSPENSION OF SENTENCES 162. Petitions to the Central Government or Chief of the Naval Staff against findings or sentences. Any person subject to naval law who considers himself aggrieved by a finding or sentence of any court -martial may present a petition to the Central Government or to the Chief of the Naval Staff, and the Central Go vernment or the Chief of the Naval Staff, as the case may be, may pass such order thereon as may be thought fit. 163. Powers of Central Government and the Chief of the Naval Staff in respect of findings and sentences .(1) Where any person is tried under the provisions of this Act, the Central Government or the Chief of the Naval Staff, may, in the case of a conviction, (a) set aside the finding and sentence and acquit or discharge the accused or order him to be retried, or (b) alter the finding, maintain ing the sentence (provided that such sentence may be legally passed on the altered finding), or 50 (c) with or without altering the finding, reduce the sentence or commute the punishment awarded for any punishment inferior in scale, or (d) either with or with out conditions, pardon the person or remit the whole or any part of the punishment awarded, or (e) either with or without conditions, release the person on parole: Provided that a sentence of imprisonment shall not be commuted for a sentence of detention for a term exceeding the term of imprisonment awarded, and a sentence of dismissal with disgrace not accompanied by a sentence of imprisonment shall not be commu ted for a sentence of detention: Provided further that nothing in this section shall authorise the Central Government or the Chief of the Naval Staff to enhance the sentence. (2) Any sentence modified under the provisions of sub -section ( 1) shall be carried into execution as if it had been originally passed. (3) If any condition on which a person has been pardoned or released on parole or a punishment has been remitted is in the opinion of the authority which granted the pardon, release or remission not fulfilled, such authority may cancel the pardon or release or remission and thereupon the senten ce awarded shall be carried into effect as if such pardon, release or remission had not been granted : Provided that in the case of a person sentenced to imprisonment or detention such person shall undergo only the unexpired portion of the sentence. 1[163A . Provision relating to parole. Where any person is tried under the provision s of this Act, the Central Government or the chief of the Naval Staff or the Flag Officers commanding -in-Chief of the Naval Commands may in the case of conviction either with or w ithout conditions release the person on parole.] 164. Suspension of sentences. (1) Where a person has been sentenced to imprisonment or detention , the Central Government or the officer who by virtue of the foregoing section or sub -section ( 3) of section 150 has power to issue an order of committal (hereinafter in this section referred to as the committing authority ) may, in lieu of issuing such an order, order that the sentence be suspended until an order of committal is issued, and in such case (a) notwithstanding anything in this Act, the term of the sentence shall not be reckoned as commencing until an order of committal is issued; (b) the case may at any time, and shall at intervals of not more than three months, be reconsidered by the Central Government or committing authority or the prescribed officer, and if on any such reconsideration it appears to the Central Government or committing authority or such prescribed officer that the conduct of the offender since his conviction has been such as to justify a remission of the sentence, the Central Government or committing authority or such prescribed officer shall remit the whole or any part of it; (c) subject to regulations made under this Act, the Central Government or the committing authority or such prescribed officer may at any time whilst the sentence is suspended issue an order of committal and thereupon the sentence shall cease to be suspended; (d) where a person subject to naval law, whilst a sentence on him is so suspended, is sen tenced to imprisonment or detention for any other offence then, if he is at any time committed either under the suspended sentence or under any such subsequent sentence, and whether or not any such subsequent sentence has also been suspended, the committin g authority may direct that the two sentences shall run either concurrently or consecutively, so, however, as not to cause a person to undergo detention for a period exceeding the aggregate of two consecutive years. (2) When a person has been sentenced to imprisonment or detention and an order of committal has been issued, the Central Government or the committing authority, or prescribed officer may order the sentence to be suspended, and in such cases the person whose sentence is suspended shall be dischar ged and the currency of the sentence shall be suspended until he is again committed under the same sentence, 1. Ins. by Act 23 of 2005, s. 8 (w.e.f. 23 -6-2005). 51 and the provisions of clauses ( b), (c) and ( d) of sub -section ( 1) shall apply in like manner as in the case where a sentence has been suspended bef ore an order of committal has been issued. (3) Where a sentence is suspended under this section, whether before or after committal, the Central Government or, subject to regulations made under this Act, the committing authority or officer by whom the sente nce is suspended may, direct that any penalty which is involved by the punishment of
the committing authority or officer by whom the sente nce is suspended may, direct that any penalty which is involved by the punishment of imprisonment or detention either shall be or shall not be remitted or suspended. CHAPTER XVII OFFENCES IN RELATION TO COURT -MARTIAL , DISCIPLINARY COURTS AND PRISONS 165. Offences by persons not subj ect to naval law in relation to courts -martial and disciplinary court.Every person not subject to naval law, who, (a) being duly summoned or ordered to attend as a witness before a court -martial or disciplinary court fail s to attend without due cause, or (b) refuses to take an oath or make an affirmation legally required by a court -martial or disciplinary court to be taken or made, or (c) being sworn or affirmed, refuses to answer any questions put by or before a court -martial or disciplinary court, which he is in law bound to answer, or (d) refuses to produce or deliver up a document in his power which the court -martial or disciplinary court may legally demand, or (e) is guilty of contempt of court -martial or disc iplinary court, shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both. 166. Penalties for aiding escape or attempt to escape of prisoners and for breach of prison regulations. (1) Every person, who, (a) conveys or causes to be conveyed into any naval prison or naval detention quarters any arms, tools, or instruments, or any mask or other disguise to facilitate the escape of any prisoner or person undergoing detention, or (b) by any means whatever aids any prisoner or person undergoing detention to escape or in an attempt to escape from such prison or naval detention quarters, whether an escape be actually made or not, shall be punished with imprisonment for a term which may extend to fourteen years. (2) Eve ry person who brings or attempts to bring into a naval prison or naval detention quarters, in contravention of regulations made under this Act, any spirituous or fermented liquor, shall for every such offence be punished with a fine not exceeding two hundr ed rupees and not less than one hundred rupees . (3) Every person, who, (a) brings into a naval prison or naval detention quarters or to or for any prisoner or person undergoing detention, without the knowledge of the officer having charge or command thereof, any money, clothing, provisions, tobacco, letters, papers, or other articles not allowed by the rules of the prison or naval detention quarters, to be in the possession of a prisoner or person undergoing detention, or (b) throws into the said pris on or naval detention quarters, any such articles, or by desire of any prisoner or person undergoing detention, without the sanction of the said officer carried out of the prison or naval detention quarters any of the articles aforesaid, shall for every su ch offence be punished with a fine not exceeding two hundred rupees. (4) Every person, who, (a) interrupts any officer of a naval prison or naval detention quarters in the execution of his duty, or 52 (b) aids or abets any person to assault, re sist, or interrupt any such officer, shall for every such offence be punished with imprisonment which may extend to two years, or with fine, or both. (5) Every fine recovered under the foregoing sub -sections of this section shall be applied as the Central Government may direct notwithstanding any law, charter, or custom to the contrary. 167. Penalty as regards gaolers, etc. Every governor, gaoler, and keeper of any prison, gaol, or house of correction or of any naval detention quarters, and every person hav ing the charge of command of any place, ship, or vessel for imprisonment, who shall without lawful excuse, refuse or neglect to receive or confine, remove, discharge, or deliver up any offender against the provisions of this Act, or any of them, shall incu r for every such refusal or neglect a penalty not exceeding one thousand rupees and every such penalty shall be applied as the Central Government may direct notwithstanding any law, charter, or custom to the contrary. CHAPTER XVIII JUDGE ADVOCATE GENERAL OF THE NAVY AND OFFICERS OF HIS DEPARTMENT 168. Appointment of the Judge Advocate General of the N avy and his subordinate officers .(1) There shall be appointed by the Central Government a Judge Advocate General of the Navy and as many judge advocates in t he department of the Judge Advocate General of the Navy as the Central Government may deem necessary. (2) Out of the judge advocates so appointed, the Central Government may designate any one to be the Deputy Judge Advocate General of the Navy. (3) A perso n shall not be qualified for appointment as Judge Advocat e General of the Navy unless he (a) is a citizen of India, and (b) has for at least ten years held a judicial office in the territory of India, or (c) has for at least ten years been an advocate of a High Court or two or more such courts in successio n 1[Provided that the Central Government may, if it is of opinion that it is necessary or expedient so to do in the exigencies of service, relax, for reasons to be recorded in writing, the qu alification specified in clause ( b) or clause ( c) in respect of any person.] (4) A person shall not be qualified for appointment as Deputy Judge Advocate General of the Navy unless he (a) is a citizen of India , and (b) has for at least seven years held a judicial office in the territory of India, or (c) has for at least seven years been an advocate of a High Court or two or more such courts in succession. 1[Provided that the Central Government may, if it is of opinion that it is necessary or expedient so to do in the exigencies of service, relax, for reasons to be recorded in writing, the qualification specified in clause ( b) or clause ( c) in respect of any person.] (5) A person shall not be qualified for appointment as a judge advocate unless he (a) is a citizen of India , and (b) is qualified for enrolment as an advocate or a leader of a High Court. Explanation. For the purposes of this section, (a) in computing the period during which a person has been an advocate of a High Court, there shall be include d any period during which the person has held judicial office after he became an advocate; 1. Ins by Act 53 of 197 4, s. 17 (w.e.f. 16 -12-1974). 53 (b) in computing the period during which a person has held judicial office in the territory of India or been an advocate of a High Court, there shall be included any period before the commencement of the Constitution during which he has held judicial office in any area which was comprised before the 15th day of August, 1947, within India as defined in the Government of India Act, 1935, or has practised as an advocate of any High Court in any such area as the case may be; (c) the expression judicial office shall be deemed to include the office of the Judge Advocate of the Fleet or any of his deputies or assistants and any other legal or judicial office in the department of the Judge Advocate of the Fleet held before the commencement of this Act, and the off ice of the Judge Advocate General of the Navy or of a judge advocate held after the commencement of this Act. 169. Functions of the Judge Advocate General of the Navy .It shall be the duty of the Judge Advocate General of the Navy to perform such duties of a legal and judicial character pertaining to the Indian Navy as may from time to time be referred or assigned to him by the Central Government or the Chief of the Naval Staff, and to discharge the functions conferred on him by or under this Act or any other law for the time being in force. 170. Discharge of functions of the Judge Advocate General of the Navy in his absence .The functions of the Judge Advocate General of the Navy shall in his absence on leave or otherwise, be performed by s uch one of the judge advocates in his department as may be designated in this behalf by the Chief of the Nav al Staff. CHAPTER XIX DISPOSAL OF THE P RIVATE PROPERTY OF PERSONS DECEASED , MISSING , ETC. 171. Disposal of property of deceased sailors .(1) On the death of a 1[sailor] while subject to naval law, the commanding officer of the ship to which the 1[sailor] belonged shall as soon as may be, (a) secure all movable property belonging to the deceased that is in the ship or quarters and cause an inventory t hereof to be made; (b) draw the pay and allowances due to such persons; (c) if he thinks fit, and subject to any regulations made in this behalf, collect all moneys left by the deceased in any banking company, including any post office sa vings banks, co operative bank or society, or any other institution receiving deposits in money however named, and for that purpose may require the agent, manager or other proper authority of such banking company, society or other institution to pay the moneys to the comman ding officer forthwith notwithstanding anything in the rules of the banking company, society or institution; and such agent, manager or other authority shall, notwithstanding anything contained in any other law, be bound to comply with the requisition. (2) Where any money has been paid by the banking company, society or other institution in compliance with the requisition under clause ( c) of sub -section ( 1), no person shall have any claim against the said banking company, society or other institution in res pect of such money. (3) The commanding officer shall, if in his opinion it is necessary for the purpose of securing the payment of the ship and service debts and other debts in the ship or quarters of the deceased and the expenses, if any, incurred by the commanding officer in respect of the estate of the deceased, cause the movable property of the deceased to be sold or converted into money. (4) If the representative of the deceased is on the spot and either pays or gives security for the payment of the sh ip and service debts and other debts in ship or quarters due from the deceased, the commanding officer shall not take action under clause ( c) of sub -section ( 1) or under sub -section (3). (5) The commanding officer shall, out of the moneys so received, coll ected or realised under sub-sections ( 1) and ( 3), pay the ship and service debts and other debts in ship or quarters of the deceased, and the expenses incurred in connection with the realisation of the assets of the deceased. 1. Subs. by Act 53 of 1974, s. 2, for seam an (w.e.f. 16 -12-74). 54 (6) Any property left over after meeting the expenditure indicated in sub -section ( 5), or where the representative had paid or given security for the payment of the ship and service debts and other debts in ship or quarters the entire property of the deceased, shall be de livered over by the commanding officer to the representative of the deceased, whereupon his responsibility for the administration of the estate of the deceased shall cease. (7) If no claim is made in respect of the said surplus by a representative of the d eceased within twelve months of the death, the commanding officer shall take steps to hand over the property to the prescribed person who shall continue the administration of the estate of the deceased as provided for in section 176. 172. Disposal of prope rty of deceased officers .The provisions of section 171 shall also apply to the disposal of the property of an officer who dies while subject to naval law, but with the following modifications, namely: (i) the functions of the commanding officer under section 171 shall be performed by a Committee of Adjustment constituted in this behalf in the prescribed manner; and (ii) the surplus, if any, after the payment of debts and expenses specified in sub -section ( 3) of section 171 shall be paid to the person p rescribed in this behalf. 173. Decision of questions as to ship and service debts and other debts in ship or quarters .If in any case dou bt or difference arises as to what are the ship or service debts and the debts in ship or quarters of a deceased office r or 1[sailor] or as to the amount payable in respect thereof, the decision of the prescribed person shall be final and shall be binding on all persons for all purposes. 174. Nature of the powers of commanding officer or Committee of Adjustment .For the purpose of the exercise of his or its duties under section 171 or 172, as the case may be, the commanding officer or the Committee of Adjustment, as the case may be, shall, to the exclusion of all other persons and authorities have the same rights and powers as if the commanding officer or the Committee had taken out representation to the estate of the deceased, and any receipt given by such commanding officer or the Committee, as the case may be, shall have effect accordingly. Explanation. Representation includes probate, letters of administration with or without the will annexed and a succession certificate issued by a court of competent jurisdiction constituting a person executor or administrator of the estate of the deceased person or authorising him to receive or realise the assets of a deceased person. 175. Powers of Central Government to hand over estate of deceased persons to the Administrator -General .(1) Notwithstanding anything contained in the Administrator -General s Act, 1913 (3 of 1913) , an Administrator -General shall not interpose in any manner in relation to any property of a deceased which has been dealt with under section 171 or section 172 except in so far as he is expressly required or competent to do so by or under the provisions of this Act. (2) The Central Government may, at any time and in such circumstances as it thinks fit, direct that the estate of a deceased 1[sailor] or officer shall be handed over by the commanding officer or the Committee of Adjustment, as the case may be, to the Administrator -General of a State for administration and thereupon such commanding officer or the Committee shall make over the estate to such Administrator -General. (3) Where under this section any estate is handed over t o the Administrator -General, the latter shall administer such estate in accordance with the provisions of the Administrator -General s Act, 1913 (3 of 1913) : Provided that where the estate is handed over to the Administrator -General before the ship and service debts and other debts in ship or quarters of the deceased are paid, it shall be the duty of the Administrator -General to pay these debts in priority to any deb
arters of the deceased are paid, it shall be the duty of the Administrator -General to pay these debts in priority to any debts due by the deceased. (4) The Administrator -General shall pay the surplus, if any, remaining in his hands after discharging all debts and charges, to the heirs of the deceased and if no heir is traceable, shall make over the surplus to the person prescribed in this behalf. 1. Subs. by Act 53 of 1974, s. 2, for seaman (w.e.f. 16 -12-74). 55 (5) The Administrator -General shall not charge in respect of his duties under this section any fee exceeding three per cent. of the total amount coming to or remaining in his hands after payment of the ship and service debts and the other debts in ship or quarters. 176. Disposal of surplus by prescribed persons. On receipt of the surplus referred to in sub-section ( 7) of section 171 or clause ( ii) of section 172 or sub -section ( 4) of section 175, the prescribed person shall, (a) if he knows of a legal representative of the deceased, pay the surplus to t hat representative; (b) if the surplus does not exceed 1[the prescribed amount not exceeding rupees on lakh in value ] if he thinks fit, pay or deliver to any person appearing to him to be entitled to receive the same, without requiring such person to produ ce any probate, letters of administration, succession certificate or other conclusive evidence of title; (c) if the prescribed person does not know of any such representative to whom the surplus could be paid under clause ( a), or if the surplus has not bee n disposed of under clause ( b), publish every year a notice in the prescribed form and manner for six consecutive years; and if no claim to the surplus is made by the legal representative of the deceased within six months even after the publication of the last of such notices, the prescribed person shall deposit the surplus together with any income or accumulation of income accrue therefrom, to the credit of the Central Government: Provided that such deposit shall not prejudice the claims of any person to s uch surplus or any part thereof, if he is otherwise entitled to it. 177. Disposal of effects not converted into money. Where any part of the estate of a deceased officer or 2[sailor] consists of effects, securities or other property not converted into money, the provisions of sub -section ( 7) of section 171 or clause ( ii) of section 172 and section 176 with respect to the payment of the surplus shall, save as may be prescribed, extend to the delivery, transmission or transfer of such effects, securities or property, and the prescribed person shall have the same power of converting the same into money as a legal representative of the deceased. 178. Termination of liability of commanding officer, Committee, prescribed person and the Central Government. Any payment or application of money or delivery, sale or other disposition of any property made, or purported to be made by the commanding officer, the Committee or the prescribed person in good faith in pursuance of sections 171 to 176 shall be valid and shal l fully absolve the commanding officer, the Committee or the prescribed person, as the case may be, as well as the Central Government from all liability in respect of the money or property so paid, applied or disposed of; but nothing herein contained shall be deemed to affect the right of any executor or administrator or other legal representative or of any creditor of the deceased against any person to whom any such payment or delivery as aforesaid has been made. 179. Saving of rights of representative. Nothing in this Chapter shall affect the rights and duties of the representative of a deceased 2[sailor] or officer or any Administrator -General, in respect of the property of such deceased 2[sailor] or officer not collected by the commanding officer or the Committee, as the case may be, and not forming part of the surplus handed over to the prescribed person either under sub-section ( 7) of section 171 or clause ( ii) of section 172. 180. Application of sections 171 to 179 to persons of unsound mind. The provisions of sections 171 to 179 shall, so far as they can be made applicable, also apply in the case of an officer or 2[sailor] subject to naval law who is ascertained in the prescribed manner to be of unsound mind notwithstanding anything contained in t he Indian Lunacy Act, 1912 (4 of 1912) , or who, while o n active service, is officially reported missing, as if the said officer or 2[sailor] had died on the day on which his unsoundness of mind is so ascertained or, as the case may be, on the day on which he is officially reported missing : 1. Subs . by Act 23 of 2005 , s. 9, for ten thousand rupees in value and (w.e.f . 23-6-2005 ). 2. Subs. by Act 53 of 1974, s. 2, for seam an (w.e.f. 16-12-74). 56 Provided that in the case of an officer or 1[sailor] so reported missing, no action shall be taken to dispose of the property under sections 171, 172 and 175 until such time as a certificate under the regulations made und er this Act is issued by or under the authority of the Chief of the Naval Staff or other prescribed person that he is confirmed or presumed to be dead. 181. Appointment of Standing Committee of Adjustment in certain cases. When an officer while subject to naval law dies or is ascertained in the prescribed manner to be of unsound mind or while on active service is officially reported missing, the reference in the foregoing provisions of this Chapter to the Committee shall be construed as references to the St anding Committee of Adjustment, if any, constituted in this behalf in the prescribed manner and such Standing Committee, if constituted, shall alone b y entitled to perform all the functions of such Committee unless otherwise directed by the Chief of the Na val Staff. 182. Exercise of powers by other persons. The functions and powers of the commanding officer in this Chapter may in any case be performed or exercised by any other person appointed in this behalf by the Chief of the Naval Staff. 183. Forfeiture of effects for absence without leave. If any person subject to naval law is absent without leave for a period of one month (whether he is guilty of desertion or of improperly leaving his ship or place of duty or not) but is not apprehended or tried for his offence, he shall be liable for forfeiture of pay and allowances and other benefits as the Central Government from time to time by regulations provide, and the Central Government, the Chief of the Naval Staff or the prescribed officer may by an order cont aining a statement of the absence without leave direct that the clothes and effects, if any, left by him on board ship or at his place of duty be forfeited and the same be sold and the proceeds of the same shall be disposed of as provided in the regulation s made under this Act; and every order under this provision for forfeiture or sale be conclusive for the purpose of this section as to the fact of the absence without leave as therein stated of the person therein named; but in any case the Central Governme nt may, if it deems fit on sufficient cause being shown at any time after forfeiture and before sale, remit the forfeiture, or after sale pay or dispose of the proceeds of the sale or any part thereof to or for the use of the person to whom the clothes or effects belonged, or his representatives. CHAPTER XX REGULATIONS 184. Power to make regulations. (1) The Central Government may, by notification in the Official Gazette, make regulations for the governance, command, discipline, recruitment, conditions of service and regulation of the naval forces and generally for the purpose of carrying into effect the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, s uch regulations may provide for (a) the rank, precedence, powers of command and authority of officers and 1[sailors] in the naval service; (b) the relative rank, precedence, powers of command and authority of officers and 1[sailors] in the naval service in relation to members of the regular Army and t he Air Force; 2[(c) the cases in which, and the conditions subject to which, powers of punishment may be exercised under sub -section ( 2) of section 7; (ca) the retirement, discharge and dismissal of persons in the naval service; (cb) the authority to which any matter referred to in section 19A may be referred and the manner in which an enquiry may be made by that authority;] (d) the convening and constitution of courts -marital and the appointment of prosecutors at trials by court -martial; 1. Subs. by Act 53 of 1974, s. 2, for seam an (w.e.f. 16-12-74). 2. Subs by s. 18, ibid., for clause ( c) (w.e.f. 16 -12-1974). 57 (e) the adjournm ent, dissolution and sittings of courts -martial; (f) the procedure to be observed in trials by courts -martial, the persons by whom an accused may be defended in such trials and the appearance of such persons thereat; (g) the forms of orders to be made under the provisions of this Act relating to courts -martial and the awards and infliction of death, imprisonment and detention; (h) the carrying into effect of sentences of courts -martial; (i) any matter necessary for the purpose of carrying this Act into execution as far as it relates to the investigation, arrest, custody, trial and punishment of offences triable or punishable under this Act; (j) the terms and conditions of service, the pay, pensions, allowances and other benefits of persons in the naval service, including special provision in this behalf during active service; (k) the ceremonials to be observed and marks of respect to be paid in the naval service; (l) the convening of, the constitution, procedure a nd practice of boards of inquiry, the summoning of witnesses before them and the administration of oaths by such boards; (m) the computation of time of absence without leave or custody of deserters and absentees without leave; (n) any matter relating to t he realisation and disposal of the estates of officers or 1[sailors] who are deceased, ascertained to be of unsound mind or reported missing on active service; (o) the enquiry into the conduct of prisoners of war, and their pay and allowances; (p) the prov ision to be made for the wives and children of prisoners of war or missing persons; (q) the procedure relating to the exercise of powers under section 163; 1[(qa) the amount required to be prescribed under clause ( b) of section 176 ] (r) any other matter which is to be, may be, or is required to be, prescribed under this Act. 2[184A. Power to make regulations with retrospective effect. The power to make regulations conferred by this Act shall include the power to give retrospective effect, from a date not earlier than the date of commencement of this Act, to the regulations or any of them, but no retrospective effect shall be given to any regulation so as to prejudicially affect the interests of any person to whom such regulation may be applicable.] 3[185. Regulations to be laid before Parliament. Every regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session for a total period of thirty days which may be comprised in one sessio n or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the regulation or, both Houses agree that the regulati on should not be made, the regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously don e under that regulation.] CHAPTER XXI REPEALS AND SAVINGS 186. [Repeals ].Rep. by the Repealing and Amending Act , 1960 ( 58 of 1960), s. 2 and the First Schedule (w.e.f. 29-12-1960) . 187. Provisions as to existing naval forces, appointments, etc. (1) The Indian Navy in existence at the commencement of this Act shall be deemed to be the regular naval force raised under this Act. 1. Ins. by Act 23 of 2005, s. 10 ( w.e.f. 23-6-2005). 2. Ins. by Act 48 of 1982, s. 11 (w.e.f. 16 -10-1982). 3. Subs. by Act 53 of 197 4, s. 19 , for section 185 (w.e.f. 16 -12-1974). 58 (2) The Indian Naval Reserve, the Indian Naval Volunteer Reserve and the Indian Fleet Reserve in existence at the commencement of this Act shall be deemed to be the Indian Naval Reserve Forces raised under this Act. (3) Officers in the Indian Navy or the Indian Naval Reserve Forces at the commencement of this Act shall be deemed to have been appointed as such under this Act. (4) The person holding office as Judge Advocate of the Fleet at the commencement of this Act shall, on such commencement, be deemed to have been appointed as the Judge Advocate General of the Navy under this Act. (5) 1[Sailors] in the Indian Navy or in the Indian Naval Reserve Forces at the commencement of this Act shall be deemed to have been duly enrolled as such under this Act. CHAPTER XXII TRANSITORY PROVISIONS 188. Power s of officers of the Royal Navy. (1) An officer of the Royal Navy attached to or serving with the Indian Navy shall have and exercise all such powers as are vested in or may be exercised by an officer of the Indian Navy of corresponding rank or holding a corresponding appointment and shall be eligible to be granted a commission to convene courts -martial or to be appointed as president of a court -martial or to sit on a court -martial as a member as if he were an officer of the Indian Navy subject to naval law. (2) The expression superior officer wherever used in this Act shall be deemed to include an officer of the Royal Navy when serving under conditions specified in sub -section ( 1).
include an officer of the Royal Navy when serving under conditions specified in sub -section ( 1). 1. Subs. by Act 53 of 1974, s. 2, for seam an (w.e.f. 16 -12-1974).
THE BOMBAY CIVIL COURTS ACT, 1869 ACT NO. 14 OF 1869 [19th March , 1869 .] An Act to consolidate and amend the law relati ng to the District and Subordi nate Civil Courts in the Presidency of Bombay. Preamble .Whereas it is expedient to consolidate and amend t he law relating to the District and other subordinate Civil Courts in the Presidency of Bombay; It is hereby enacted as follows: PART I.Preliminary . 1. Short title. Extent of Act. This Act may be called The Bombay Civil Courts Act, 1869, and extends only to the territories (other than Sind) under the Government of the Governor of Bombay in Council in which the Code of Civil Procedure is now in force. But the Governor of Bombay in Council may, by notification in the Government Gazette, extend this Act to any other of the territories under such Government in which the said Code is not in force, or to Sind. 2. [Repeal of enactments ].Rep. by the Obsolete enactments Act , 1870 (14 of 1870), s. 1 and Schedule , Part II (w.e.f . 5-4-1870). PART II.Districts and Sadr Stations. 3. Alteration and creation of Districts. The Governor of Bombay in Council may from time to time, by noti fication in the Government Gaz ette, alter the limits of exist ing Zilas (which shall hereafter be called Districts) and create new Districts for the purposes of this Act. 4. Position of Sadr station. The Governor of Bombay in Council may also from time to time, by notification in the Government Gazette , alter the position of the Sa dr station in any District, and fix the position of the Sadr station in any new District. PART III.District Courts. 5. District Judges. There shall be in each District a District Court presided over by a Judge to be called th e District Judge. He shall be appointed by the Governor of Bombay in Council by whose authority only he shall be liable to be suspended or removed from his appointment. 1* * * * * 6. Situation of District Court. The District Judge shall ordinarily hold the District Court at the Sadr station in his District, but may, with the previous sanction of the High Court, hold it elsewhere within the District. 7. Original jurisdiction of District Judge. The District Court shall be the principal Court of origin al civil juris diction in the District, within the meaning of the Code of Civil Procedure. 8. His appellate jurisdiction. Except as provided in sections sixteen, seventeen and twenty -six, the District Court shall be the Court of Appeal from all decrees and orders passed by the Subordinate Courts from which an appeal lies under any law for the time being in force. 9. Control and inspec tion of Courts. The District Judge shall have general control over all the Civil Courts and their establishments within the District, and it shall be his duty to inspect, or to cause one of his Assistants to in spect, the proceedings of all the Courts subordinate to him, and to give such directions with respect to matters not provided for by law as he may think necessary. The D istrict Judge shall also refer to the High Court all such matters as appear to him to require that a rule of that Court should be made thereon. 1. The second paragraph of s. 5 rep. by Act 12 of 1876, s. 1 and Schedule , Part I (w.e.f. 11 -4-1876). 4 10. Writs and orders. Reports and returns .The District Judge shall obey all writs, orders, or processes issued to him by the High Court, and shall make such returns or reports thereto under his signature and the seal of th e Court as the exigencies of the case require. He shall further furnish such reports and returns and copies of proceedings as may be called for by the High Court or the Governor of Bombay in Council. 11. Seal of District Judge. The District Judge shall use a circular seal two inches in diameter, which shall bear thereon the. Royal Arms with the following inscription in English and the principal language of the District District Court of . PART IV.Joint Judges . 12. Power to appoint Joint Judges. The Governor of Bombay in Council may, with the previous sanction of the Governor General of India in Council, appoint in any District a Joint Judge who shall be invested with co -extensive powers and a concurrent jurisdiction with the District Judge, except that he shall not keep a file of civil suits and shall transact such civil business only as he may receive from the District Judge, o r as may have been referred to the Joint Judge by order of the High Court. When the appointment of a Joint Judge shall have been sanctioned by the Governor General of India in Council, the Governor of Bombay in Council may, so long as such sanction continu es in force, appoint a successor to such Joint Judge in case his office becomes vacant, or transfer such Joint Judge from one District to another; and in such other District the Joint Judge so transferred shall have the same powers as he had in the former District. 13. Enactments apply ing to District Judge to apply to Joint Judge. Joint Judges seal. All Regulations and Acts now or hereafter in force and applying to a District Judge shall be deemed to apply also to the Joint Judge; and the seal of the Joint Judge shall be the same as is used by the District Judge. PART V.Assistant Judges . 14. Power to appoint Assistant Judges. The Governor of Bombay in Council, under the general control of the Governor General of India in Council, may appoint one or mo re Assistants to the District Judge, and may suspend or remove from his appointment any Assistant so appointed. 1* * * * * 15. Situation of Assistant Judges Court. An Assistant Judge shall ordinarily hold his Court at the same place as the District Judge, but he may hold his Court elsewhere within the District, whenever the District Judge shall, with the previous sanction of the High Court, direct him so to do. 16. Original jurisdiction of Assistant Judge. The District Judge may refer to any Assistant Judge subordinate to him original suits of which the subject -matter does not amount to ten thousand rupees in amount or value, and miscellaneous applications not being of the nature of appeals. The Assistant Judge shall have jurisdiction to try such suits and to dispose of such applica tions. Where the Assistant Judge s decrees and orders in such cases are ap pealable, the appeal shall lie to the District Judge or to the High Court ac cording as the amount or value of the subject -matter does not exceed or exceeds five thousand rupees. The Assistant Judge shall, when directed by the District Judge so to do, also take evidence on applications for certificates under 2* Act No. XX of 1864 ( for making better provi sion for the care of the persons and property of minors in the Presidency of Bombay ), and shall forward it with his opinion thereon for the final orders of the District Judge. 17. Appellate jurisdiction of Assistant Judge. The Governor of Bombay in Council may, by notification in the Governm ent Gazette, empower any Assistant Judge to try such appeals from the decrees and orders of the subordinate Courts as would lie to the District Judge and as may be referred by him to the Assistant Judge. 1. The second paragraph of s . 14 rep. by Act 12 of 1876, s. 1 and Schedule , Part I (w.e.f. 11 -4-1876). 2. Certain words repealed by Act 7 of 1889, s. 2 and the First Schedule (w.e.f. 8 -3-1889). 5 Decrees and orders passed under this section by an A ssistant Judge shall have the same force and shall be subject to the same rules as regards procedure and appeals as decrees and orders passed by the District Judge. 18. Continuance of Assistant Judges appellate jurisdiction. A person filling the office of Assistant Judge, on whom the power of hearing appeals has once been conferred under section seventeen, shall continue to have this power so long and so often as he may fill the office of Assistant Judge, without reference to the District in which he may b e employed; provided that the Governor of Bombay in Council may, by notification in the Government Gazette, at any time withdraw such power. 19. Power to invest As sistant Judge with powers of District Judge. The Governor of Bombay in Council may, by notif ication in the Government Gazette, invest an Assistant Judge with all or any of the powers of a District Judge within a particular part of a District, and may, by like notification, from time to time determine and alter the limits of such Part. The jurisdi ction of an Assistant Judge so invested shall pro tanto exclude the jurisdiction of the District Judge from within the said limits. Every Assistant Judge so invested shall ordinarily hold his Court at such place within the local limits of his jurisdiction as may be determined by the Governor of Bombay in Council, and may, with the previous sanction of the High Court, hold it at any other place within such limits. 20. Assistant Judge to use seal of District Judge. Every Assistant Judge shall use the seal of the District Judge to whom he is Assistant. PART VI.Subordinate Judges . 21. Number of Subordi nate Civil Courts. There shall be in each District so many Civil Courts subordinate to the District Court as the Governor of Bombay in Council, acting under the general control of the Governor General of India in Council, shall from time to time direct. 22. Appointment of Sub ordinate Judges. The Judges of such subordinate Courts shall be appointed by the Governor of Bombay in Council, and shall be called Subordina te Judges. No person shall be appointed a Subordinate Judge unless he be a subject of the Queen who has practised five years as an Advocate of a High Court in India or as a Vakil in the High Court of Judicature in Bombay, or who has qualified for the dutie s of a Subordinate Judge according to such tests as may for the time being be prescribed by such High Court, or who has taken the degree of Bachelor of Laws in the University of Bombay. The tests so prescribed by the High Court shall be notified in the Gov ernment Gazette. 1[22A. Power to fix local limits of jurisdiction of Subordinate Judges. The Governor of Bombay in Council may, by notification in the Official Gazette, fix, and, by a like notification, from time to time alter, the local limits of the ordinary jurisdiction of the Subordinate Judges. ] 23. Situation of Subordinate Courts. The Subordinate Judges shall hold their Courts at such place or places as the Governor of Bombay in Council may from time to time appoint, within the local limits of their respective jurisdictions. Wherever more than one such place is appointed, the District Judge shall, subject to the control of the High Court, fix the days on which the Subordinate Judge shall hold his Court at each of such places, and the Subordinate Judge shall cause such days to be duly notified throughout the local limits of his jurisdiction. The same person may be the Judge of more than one Subordinate Court; and in such cases the District Judge shall, subject to the control of the High Court, presc ribe rules for regulating the time during which the Subordinate Judge shall sit in each Court. The Judge of any Subordinate Court may, with the previo us sanction of the High Court, be deputed by the District Judge to the Court of another Subordinate Judge for the purpose of assist ing him in the disposal of the suits on his file. 1. Ins. by Act 9 of 1880, s. 2 (w.e.f. 30 -4-1880). 6 24. Classes of Subordinate Judges. The Subordinate Judges shall be of two classes. Jurisdiction of Subordinate Judge of first class. The jurisdiction of a Subordinate Judge of the first class extends to all original suits and proceedings of a civil nature. Jurisdiction of Sub ordinate Judge of second class. The jurisdiction of a Subordinate Judge of the second class extends to all original suits and proceedings of a civil nature wher ein the subject -matter does not exceed in amount or value five thousand rupees. 25. Special jurisdiction of Subordinate Judge of first class. A Subordinate Judge of the first class, in addition to his ordinary juris diction, shall exercise a special jurisdiction in respect of such suits and proceedings of a civil nature wherein the subject -matter exceeds five thousand rupees in amount or value as may arise within the local jurisdictions of the Courts in the District presided over by S ubordinate Judges of the second class. In Districts to which more than one Subordinate Judge of the first class have been appointed, the District Judge, subject to the orders of the High Court, shall assign to each the local limits within which his said special juris diction is to be exercised. 26. Appeals from his decision. In all s uits decided by a Subordinate J udge 1* of which the amount or value of the subject -matter exceeds five thousand rupees, the appeal from his decision shall be direct to the High Court. 27. Appe llate jurisdiction of Subordinate Judge of first class. The Governor of Bombay in Council may invest any Subordinate Judge of the first class with power to hear appeals from such decrees and orders of Subordinate Courts as may be referred to him by the Jud ge of the District. Decrees and orders so passed in appeal by a Subordinate Judge of the first class shal l have the same force as if passed by a District Judge. The Governor of Bombay in Council may, whenever he thinks fit, with draw such jurisdiction from any Subordinate Judge so invested. 28. Power to invest Subordinate Judges with small cause powers. The Governor of Bombay in Council may invest, within such local limits as he shall from time to time appoint, any Subordinate Judge of the first class with the jurisdiction of a Judge of a Court of Small Causes, for the trial of suits cognizable by such Courts up to the amount of five hundred rupees, and any Subordinate Judge of the second class with the same jurisdiction up to the amount of fifty rupees. The Governor of Bombay in Council may, whenever he thinks fit, with draw such jurisdiction from any Subordinate Judge so invested. 29. Seal of Subordinate Judge. Each Subordinate Judge shall use a seal one inch and a half in diameter, bearing the Royal C rown with the following inscrip tion in English and the principal language of the District Subordinate Judge of . 30. [First Subordinate Judges of first class ].Rep. by the Obsolete Enactments Act , 1876 (12 of 1876), s. 1 and Schedule , Part I (w.e.f. 11-4-1876). 31. [Pending proceedings ].Rep. by s. 1 and Schedule , Part I, ibid. (w.e.f. 11-4-1876). 32. Reference of Gov ernment suits. 2[No Subordinate Judge
11-4-1876). 32. Reference of Gov ernment suits. 2[No Subordinate Judge or Court of Small Causes shall receive or register a suit in which the Government or any officer of Government in his official capacity is a party, but in every such case such Judge or Court shall refer the plaintiff to the District Judge, in whose Court alone (subject to the provisions of section nineteen) such suit shall be in stituted. ] 1. The words of the fir st class in the exercise of his ordinary and special original jurisdiction omitted by Act 28 of 1930, s. 2 (w.e.f. 25 -7-1930). 2. Subs. by Act 10 of 1876, s. 15, for certain words (w.e.f. 28 -3-1876). 7 1[Provided that nothing in this section shall be deemed to apply to any suit merely because (a) a municipal corporation constituted under Bombay Act No. VI of 1873, or any other enactment for the time being in force, is a party to such suit and an officer of Government is in his official capacity a member of such corporation, or (b) an officer of a Court appointed under the Code of Civil Procedure, section 456, last paragraph, 2*** a party to such suit. ] Removal or suspension. 33. Commission of enquiry into alleged misconduct. Whenever the High Co urt is of opinion that there are good grounds for making a formal and public enquiry into the truth of any imputation of misconduct by any Subordinate Judge, the High Court may appoint a Commissioner or Commissioners for the purpose of holding such an enquiry, and on the receipt of his or their report may order that the Subordinate Judge be removed or suspended from office, or reduced to a lower class. The provisions of Act No. XXXVII of 1850 (for regula ting enquiries into the behaviour of public servants) shall apply to enquiries under this section, the powers conferred by that Act on the Government being exercised by the High Court. 34. Suspension of Sub ordinate Judges by High Court or Dis trict Judge. The High Court may suspend any Subordinate Judge from office pending the result of an enquiry into his behaviour under this section . Any District Judge may, whenever he sees urgent necessity for so doing, suspend from office any Subordinate Judge under hi s control. But whenever the District Judge suspends any such Subordinate Judge, he shall forthwith re port the case for the orders of the High Court. Saving of power of Government to suspend or dismiss. Nothing in this section or in section thirty -three shall be held to interfere with the right of Government to suspend, or remove from office, any Subordinate Judge at their discretion. PART VII.Temporary vacancies . 35. Temporary vacancy of office of District Judge. In the event of the death of the District Judge or of his being pre vented from performing his duties by illness or other casualty, or of his absence from his District on leave, the first in rank of the Assistant Judges in the District, or in the absence from the District of an Assistant Judge the first in rank of the Subordinate Judges, shall assume charge of the District Court without interruption to his or dinary jurisdiction, and while so in charge shall perform the duties of a District judge with respect t o the filing of suits and app eals, receiving pleadings, execu tion of processes, return of writs and the like, and shall be designated Assistant Judge or Subordinate Judge, as the case may be, in charge of the District, and shall continue in such charge until the office of District Judge may be resumed or assumed by an officer duly appointed thereto. 36. Delegation of powers of District Judge. Any District Judge leaving the Sadr station and proceeding on duty to any place within his District, may delegate to an Assistant Judge, or in t he absence of an Assistant Judge to a Subor dinate Judge at the Sadr station, the power of performing such of the duties enumerated in section thirty -five as may be emergent; and such officer shall be designated Assistant or Subordinate Judge, as the case may be, in charge of the Sadr station. 37. Temporary vacancy of office of Subordinate Judge. In the event of the death, suspension or temporary absence of any Subordinate Judge, the District Judge may empower the Judge of any Subordinate Co urt of the same District to per form the duties of the Judge of the vacated Subordinate Court, either at the place of such Court or of his own Court; but in every such case the Registers and Records of the two Courts shall be kept distinct . 1. Added by Act 15 of 1880, s. 3 (w.e.f. 3 -11-1880). 2. Certain words rep . by Act 12 of 1891, s. 2 and the First Schedule , Part I (w.e.f. 21 -3-1891). 8 PART VIII. Ministerial Officers . 38. Appointment, et c., of ministerial officers. All ministerial officers of the Civil Courts in each District shall be appointed, and may be fined, suspended or dismissed by the District Judge, subject to such rules as the High Court may from time to time prescribe : Provided that the Judge of every Subordinate Court may, subject to the like rules, appoint the ministerial officers of such Court, whose salaries do not exceed rupees ten per mens em, and may by order find, suspend or dismiss any ministerial off icer of such Court who is guilty of any misconduct or neglect in the performance of the duties of his office. Every such order shall be subject to appeal to the District Judge; and the roles for the time being applicable to appeals to the Court of Session from orders of the Criminal Courts subordinate thereto, shall apply to all appeals under this section. Nothing in this section shall exempt the offender from any penal or other consequences to which h e may be liable under any other law in force for the tim e being. 39. Duties of ministerial officers. The duties of the said ministerial officers shall be regulated by such rules as the High Court may from time to time prescribe. 40. Power to appoint Clerks of the Courts. The Governor of Bombay in Council may, u nder the general control of the Governor General of In dia in Council, appoint to any Civil Court under this Act a Clerk of the Court who, in addi tion to such duties as may from time to time be prescribed by the High Court, may receive and register plaints , and shall refer such as he may consider should be refused for the orders of the Judge of the Court, and may sign all processes, and authenticate copies of papers. PART IX.Miscellaneous . 41. Rules for keeping proceedings. The proceedings of each Civil Court shall be kept and recorded according to such rules as the High Court may from time to time prescribe. The High Court shall also lay down rules under which copies of papers may be granted. 42. Fees for process. The High Court shall from time to time, with the sanction of the Governor of Bombay in Council, prescribe and regulate the fees to be taken for any process issued by any Court the constitution of which is declared by this Act, or by any officer of such Court. Tables of the fees so prescribed sha ll be published in the Government Gazette. 43. Sittings of Courts. The District and Subordinate Courts shall sit from day to day, except on Sundays, New Year's Day, Good Friday, Christmas Day, and Her Majesty s Birth Day, and such other days as may be sanc tioned for each or every District by the High Court. Vacation .The High Court may also permit the Civil Courts under its control to adjourn for a period or periods not exceeding in the whole six weeks in each year. [SCHEDULE ].Rep. by the Obsolete enactmen ts Act , 1870 (14 of 1870), s. 1 and Schedule , Part II (w.e.f . 5-4-1870). __________
THE RESERVE BANK (TRANSFER TO PUBLIC OWNERSHIP) ACT, I948 ACT NO. 62 OF 1948 [23rd September , 1948 .] An Act to bring the share capital of the Reserve Bank of India into public ownership and to make consequential amendments in the Reserve Bank of India Act, 1934. WHEREAS it is expedient to bring the share capital of the Reserve Bank of India into public ownership, to make provisions with respect to the relations between the Central Government and the Bank and to ma ke consequential amendments in the Reserve Bank of India Act, 1934; It is hereby enacted as follows: 1. Short title .This Act may be called the Reserve Bank (Transfer to Public Ownership) Act, 1948. 2. Definitions .In this Act, (a) appointed day means such day as the Central Government may, by notification in the Official Gazette, appoint; (b) Bank means the Reserve Bank of India as constituted by the principal Act; and (c) principal Act means the Reserve Bank of India Act, 1934. 3. Transfer of Bank shares .(1) On the appointed day (a) all shares in the capital of the Bank shall by virtue of this Act be deemed to be transferred free of all trusts, liabilities and encumbrances to the Central Government, and (b) as full compensation there for, the Central Government shall issue to every person who, immediately before the appointed day, is registered as the holder of any such shares, an amount calculated at the rate of one hundred and eighteen rupees and ten anna s per share, in promissory notes of the Central Government bearing interest at the rate of three per centum per annum repayable at par on such date as may be specified in this behalf by the Central Government: Provided that where the amount so calculated i s not an exact multiple of one hundred rupees the amount in excess of the nearest lower multiple of one hundred rupees shall be paid by cheque drawn on the Bank: Provided further hat in respect of any share obtained at par from the Central Government by an y Director of the Bank in pursuance of sub -section ( 8) of section 4 of the principal Act as in force immediately before the appointed day, the said amount shall be calculated at the rate of one hundred rupees per share. (2) Notwithstanding the transfer of shares effected by this section any shareholder who, immediately before the appointed day, is entitled to payment of dividend on the shares held by him shall be entitled to receive from the Bank (a) all dividends accruing due on his shares in respect of t he year ending on the 30th day of June, 1948, or any preceding year remaining unpaid on the appointed day; (b) dividends calculated at the rate of four rupees per annum per share in respect of the period from the 1st day of July, 1948, to the appointed day . 4. Vacation of office by existing office bearers .On the appointed day any person who immediately before that day was holding office as a Director of the Central Board otherwise than as Governor or Deputy Governor or as a member of a Local Board of the Bank shall vacate his office, and the Central Board and the Local Boards of the Bank shall thereafter be constituted in the manner prescribed by sections 8 and 9 of the principal Act as amended by this Act. 3 5. Interim arrangements .Pending the constitutio n of the Central Board under section 8 of the principal Act as amended by this Act, the Governor of the Bank, or in his absence a Deputy Governor of the Bank duly nominated by him in this behalf, may, subject to such restrictions and conditions as may from time to time be imposed by the Central Government, exercise all powers, and do all acts and things which may be exercised or done by the Bank. 6. Rule -making power .(1) The Central Government may, by notification in the Official Gazette, make rules for th e purpose of giving effect to the objects of this Act. (2) In particular and without prejudice to the generality of the foregoin g power, such rules may provide (a) for the manner in which and the authority by which compensation shall be paid under section 3; and (b) for the determination of persons to whom compensation is so payable. 1[(3) Every rule made by the Central Government under this Act shall be laid, as soon a s may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately followin g the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule. ] 7. [Amen dment to Act 2 of 1934.]Rep. by the Repealing and Amending Act , 1950 (35 of 1950) , s. 2 and the First Schedul e (w.e.f . 10-4-1950) . [THE SCHEDULE .]Rep. by s. 2 and the First Schedul e, ibid. (w.e.f . 10-4-1950) . 1. Added by Act 4 of 2005, s. 2 and the Schedule (w.e.f. 11 -1-2005).

THE DOWRY PROHIBITION (MAINTENANCE OF LISTS OF PRESENTS TO THE BRIDE AND BRIDEGROOM) RULES, 1985 G.S.R. 664 (E), dated 19th August, 1985. - In exercise of the powers conferre d by Sec.9 of the Dowry Prohibition Act, 1961 (28 of 1961), the Central Government hereby makes the following rules, namely: 1. Short title and commencement. - (1) These rules may be called the Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985. (2) They shall come into force on the 2nd day of October, 1985, being the date appointed for the coming into force of the Dowry Prohibition (Amendment) Act, 1984 (63 of 1984). 2. Rules in accordance with which lists of presents are to be maintained. - (1) The list of presents which are given at the time of the marriage to the bride shall be maintained by the bride. (2) The list of pr esent which are given at the time of the marriage to the bridegroom shall be maintained by the bridegroom. Every list of presents referred to in sub -rule (1) or sub -rule (2), - a. shall be prepared at the time of the marriage or as soon as possible after the marriage: b. shall be in writing; c. shall contain, - i. a brief description of each present; ii. the approximate value of the present; iii. the name of the person who has given the present; and iv. where the person giving the present is related to the bride or bridegroom, a description of such relationship; d. shall be signed by both the bride and the bridegroom. Explanation. 1. - Where the bride is unable to sign, she may affix her thumb impression in lieu of her signature after having the list read out to her and obtaining the si gnature on the list, of the person who has so read out the particulars contained in the list. Explanation 2. - Where the bridegroom is unable to sign he may affix his thumb -impression in lieu of his signature after having the list read out to him and obtai ning the signature on the list of the person who has so read out the particulars contained in the list. (4) The bride or the bridegroom may, if she or he so desires, obtain on either or both of the lists referred to in sub -rule (1) or sub -rule (2) the sign ature or signatures of any relations of the bride or the bridegroom or of any other person or persons present at the time of the marriage.

THE TEA ACT, 1953 ACT NO. 29 OF 19531 [28th May , 1953.] An Act to provide for the control by the Union of the Tea industry, including the control, in pursuance of the International Agreement now in force, of the cultivation of tea in, and of the export of tea from, India and for that purpose to establish a Tea Board and 2[levy a duty of excise on tea produced in India.] BE it enacted by parliament as follows: CHAPTER I PRELIMINARY 1. Short title, extent and commencement .(1) This Act may be called the Tea Act, 1953. (2) It extends to the whole of India: Provided that it shall not apply to the State of Jammu and Kashmir * except to the extent to which the provi sions of this Act relate to the control of the export of tea from, and the cultivation of tea in, India. (3) It shall come into force on such date3 as the Central Government may, by notification in the Official Gazette, appoint. 2. Declaration as to expedi ency of control by the Union .It is hereby declared that it is expedient in the public interest that Union should take under its control the tea industry. 3. Definitions .In this Act, unless the context otherwise requires, (a) Board means the Tea Board constituted under section 4; (b) broker means a broker of tea; (c) cess means 4[the duty of excise] imposed by section 25; 5[(d) Commissioner of Customs means a Commissioner of Customs as specified in clause ( b) of section 3 of the Customs Act, 1962 (52 of 1962);] (e) dealer means a dealer in tea; (f) export means to take out of India by land, sea or air to any place outside India other than a country or territory notified in this behalf by the Central Government by notification in the Official Gazette; (g) export allotment means the total quantity of tea which may be exported during any one financial year; (h) Fund means the Tea Fund referred to in section 27; (i) manufacturer means a manufacturer of tea; (j) member means a member of the Board; (k) owner 1. This Act has been extended with modifications to Goa, Daman and Diu by Reg. 11 of 1963. s. 3 and Sch. 2. Subs. by Act 21 of 1967, s. 2, for levy a customs duty on tea exp orted from India (w.e.f.13 -8-1967). 3. 1st April, 195 6; see notification No. S.R.O. 943, dated the 17 th March 1954, Gazette of India, Extraordinary, 1954, Part II, s. 3. 4. Subs. by Act 21 of 1967, s. 3, for the customs -duty. 5. Subs. by Act 22 of 1995, s. 86, for clause ( d) (w.e.f. 26 -5-1995). *. Vide notification No. S.O. 3912(E), dated 30th October, 2019, this Act is made applicable to the Union territory of Jammu and Kashmir and the Union territory of Ladakh. 5 (i) with r eference to a tea estate or garden or a sub -division there of the possession of which has been transferred by lease, mortgage or otherwise, means the transferee so long as his right to possession subsists; and (ii) with reference to a tea estate or a garde n or a sub -division for which an agent , is employed means the agent if , and in so far as, he has been duly authorized by the owner in that behalf; (l) prescribed means prescrib ed by rules made under this Act; (m) standard export figure means such quant ity as the Central Government may, by notification in the Official Gazette, specify pursuant to any international agreement in this behalf. (n) tea means the plant Camellia Sinensis (L) O. Kuntze as well as all varieties of the product known commercially as tea made from the leaves of the plant Camelia Sine nsis (L) O. Kuntze including green tea; (o) tea seed includes seed s, roots, stumps, cuttings, buds, and any living portion of the plant Camellia Sinensis (L) O. Kuntze which may be used to propagate t hat plant. CHAPTER II THE TEA BOARD 4. Establishment and constitution of the Tea Board .(1) With effect from such date as the Central Government may, by notification in the Official Gazette, specify in this behalf, there shall be established for the purpos es of this Act a Board to be called the Tea Board. (2) The Board shall be a body corporate by the name aforesaid, having perpetual succession and a common seal, with power to acquire, hold and dispose of property, both movable and immovable, and to contrac t, and shall by the said name sue and be sued. (3) The Board shall consist of a Chairman and such number of other members not exceeding forty as the Central Government may think expedient, to be appointed by that Government by notification in the Official Gazette from among persons who are in its opinion capable of representing, (a) owners of tea estate s and gardens and growers of tea; (b) persons employed in tea estates and gardens; (c) manufacturers of tea; (d) dealers including both exporters and intern al traders of tea; (e) consumers; (f) Parliament; (g) the Government s of the principal tea -growing States; (h) such other persons or class of persons, who, in the opinion of the Central Government, ought to be represented on the Board. 1[(3A) It is hereby declared that the office of member of the Board shall not disqualify its holder for being chosen as, or for being , a member of either House of Parliament.] 1. Ins. by Act 52 of 1954, s. 2 (w.e.f. 25-12-1954). 6 (4) The number of persons to be appointed as members from each of the categories specified in sub - section ( 3), the term of office of, the procedure to be followed in the discharge of their functions by, and the manner of filling vacancies among, the members of the Board shall be such as may be prescribed. (5) Any officer of the Central Government when de puted by that Government in this behalf shall have the right to attend meetings of the Board and take part in the proceedings thereof but shall not be entitled to vote. 5. Vacancies, etc., not to invalidate acts and proceedings .No act done or proceeding taken by the Board under this Act shall be questioned on the ground merely of the existence of any vacancy in, or defect in the constitution of the Board. 6. Salary and allowances of Chairman .The Chairman shall be entitled to su ch salary and allowances and such conditions of service in respect of leave, pension, provident fund and other matters as may from time to time be fixed by the Central Government. 7. Vice -Chairman .The Board shall elect from among its members a Vice -Chairm an who shall exercise such of the powers and discharge such of the duties of the Chairman as may be prescribed or as may be delegated to him by the Chairman. 8. Executive and other Committees .(1) There shall be an Executive Committee of the Board constit uted in the manner prescribed. (2) The Executive Committee shall exercise such of the powers and perform such of the duties of the Board as may be prescribed, or as the Board may delegate to it. (3) Subject to such control and restrictions as may be prescr ibed, the Board may constitute other Standing Committee or ad hoc Committees for exercising any power or discharging any duty of the Board or for enquiring into or reporting and advising on any matter which the Board may refer to them. (4) A Standing Commi ttee shall consist exclusively of members of the Board. (5) An ad hoc committee may include persons who are not members of the Board, but their number shall not exceed one half of its strength. 9. Secretary and staff .(1) The Central Government shall appoi nt 1[(a) a Deputy Chairman to the Board who shall assist the Chairman in the performance of his duties and exercise such of the powers and perform such of the duties as may be prescribed or as may be delegated to him by the Board or by a Committee constit uted by the Board under section 8 or by the Chairman; 2[(aa)] a Secretary to the Board who shall exercise such powers and perform such duties as may be prescribed or as may be delegated to him by the Board or the chairman. (b) all other officers of the Boa rd drawing 3[a salary exceeding rupees one thousand seven hundred per month.] (2) Subject to such control and restrictions as may be prescribed, the Board may appoint such other officers and employees as may be necessary for the efficient performance of i ts functions and pay them such salaries and allowances as it may determine from time to time. 1. Ins. by Act 32 of 1977, s. 2 (w.e.f.12 -8-1977). 2. Clause ( a) re-lettered as clause ( aa) by s. 2, ibid. (w.e.f.12 -8-1977). 3. Subs. by s. 2, ibid., for certain words (w.e.f. 12 -8-1977). 7 (3) The Chairman, 1[Deputy Chairman, Secretary and other employees] of the Board shall not undertake any work unconnected with their duties under this Act except with the permission of the Central Government. 10. Functions of the Board .(1) It shall be the duty of the Board to promote , by such measures as it thinks fit, the development under the control of the Central Government of the tea industry. (2) Without prejudice to the generality of the provisions of sub -section ( 1), the measure s referred to herein may provide for (a) regulating the production and extent of cultivation of tea; (b) improving the quality of tea; (c) promoting co -operative efforts among growers and manufacturers of tea; (d) undertaking, assisting or encouraging sci entific, technological and economic research and maintaining or assisting in the maintenance of demonstration f arms and manufacturing stations; (e) assisting in the control of insects and other pests and diseases affecting tea; (f) regulating the sale and export of tea; (g) training in tea testing and fixing grade standards of tea; (h) increasing the consumption in India and elsewhere of tea and carrying on propaganda for that purpose; (i) registering and licensing of manufacturers, brokers, tea waste deale rs and persons engaged in the business of blending tea; (j) improving the marketing of tea in India and elsewhere; 2[(jj) subscribing to the share capital of, or entering into any agreement or other arrangement (whether by way of partnership, joint venture or in any other manner) with, any body corporate for the purpose of promoting the development of tea industry or for promotion and marketing of tea, in India or elsewhere; (k) collecting statistics from growers, manufacturers, dealers and such other perso ns as may be prescribed on any matter relating to the tea industry; the publication of statistics so collected or portions thereof or extracts therefrom; (l) securing better working conditions and the provisions and improvement of amenities and incentives for workers; (m) such other matters as may be prescribed. (3) The Board shall perform its functions under this section in accordance with and subject to such rules as may be made by the Central Government. 11. Dissolution of the Board .(1) The Central Government may, by notification in the Official Gazette, direct that the Board shall be dissolved from such date and for such period as may be specified in the notification. (2) When the Board is dissolved under the provisions of sub -section (1) 1. Subs. by Act 32 of 1977, s. 2, for Secretary and other employees (w.e.f. 12 -8-1977). 2. Ins. by Act 68 of 1980, s. 2 (w.e.f. 27 -12-1980) . 8 (a) all members shall, from the date of dissolution, vacate their offices as such members; (b) all powers and duties of the Board shall, during the period of dissolution, be exercised and performed by such person or persons as the Central Governmen t may appoint in this behalf; (c) all funds and other property vested in the Board shall, during the period of dissolution, vest in the Central Government; and (d) as soon as the period of dissolution expires, the Board shall be reconstituted in accordance with the provisions of this Act. CHAPTER III CONTROL OVER THE EXTENSION OF TEA CULTIVATION 12. Method of control of extension of tea cultivation .(1) No one shall plant tea on any land not planted with tea on the date of commencement of this Act unless permission has been granted to him in writing by or on behalf of the Board. (2) No tea area shall be replaced by planting in tea on area not planted with tea unless permission has been granted in writing by or on behalf of the Board. (3) Nothing in this section shall prohibit the infilling or supplying of vacancies on land planted with tea on the date of commencement of this Act or the replanting of t ea upon (i) land planted with tea on the 31st day of March, 1950, from which original bushes have been uprooted, or (ii) land plant with tea on the 31st day of March, 1948, from which the original bushes have been uprooted. 13. Limitations to the extension of te a cultivation .(1) Subject to the provisions contained in sections 15 and 16, the total area of land in respect of which the permission referred to in section 12 may be granted, shall not exceed such area as may be determined by the Board under the general instructions of the Central Government. (2) The total area of land in any State in respect of which such permission may be granted shall be such as may be determined by the Board: Provided that the Board may vary the total area so determined for any State in order to increase or diminish for another State the area in respect of which such permission may be granted by an amount corresponding to the extent to which the area in the first mentioned State has been diminished or increased. (3) The Board shall pu blish the total area determined for India as well as the total areas determined for the various States by
. (3) The Board shall pu blish the total area determined for India as well as the total areas determined for the various States by notification in the Official Gazette of the Central Government as soon as may be after the commencement of this Act and shall in like manner publish a ny subsequent variation of such total areas. 14. Grant of permission to plant tea .(1) application for permission to plant tea on any land not planted with tea on the date of commencement of this Act shall be made to the Board and shall contain a clear statement of all special circumstances justifying the application. (2) The Board may require an applicant to supply such information as it thinks necessary to enable the Board to deal with the application. 9 (3) Subject to such conditions and restrictions as may be prescribed, the Board may by order grant or refuse the permission applied fo r, or may in like manner grant it in part only or may call for further information from the applicant. (4) No order by the Board under sub -section ( 3) shall be called in question by any court. 15. Grant of permission to plant tea in special circumstances. (1) Where any land which was on the 31st day of March 1933, planted with tea (including land planted with tea on the 31st day of March 1931, from which the original bushes had been uprooted and which had not been replanted with tea on the said 31st day of March 1933), or where any land planted with tea after the 31st day of March, 1933 (a) has since become wholly incapable of carrying tea through circumstances due to war, or through subsidence, flood, erosion, earthquake or other irresistible superhuman c ause, or (b) has since been compulsorily acquired under the provisions of the land Acquisition Act, 1894 (1 of 1994) , or of any other law for the time being in force and no longer carries tea, or (c) has since been transferred to the Central or a State Gov ernment or to a local authority and no longer carries tea, or (d) has since been resumed by the lessor under the terms of any lease and no longer carries tea, wherever of the tea estate in which such land is situated may apply to the Board for permission t o plant tea on land not planted with tea. Explanation .Land taken for purposes connected with the prosecution of war on which tea bushes have been allowed to remain for protective purposes though no longer cultivated shall be deemed for the purposes of thi s section to be incapable of carrying or no longer to carry tea. (2) Upon such application being made and upon proof to the satisfaction of the Board that the applica tion is entitled to the benefit of sub -section ( 1) the Board may by order grant permission to plant tea on land not planted with tea: Provided that the area of land in respect of which such permission is granted shall be within the same or an adjacent district and shall belong to the same or an adjacent tea estate and shall not exceed in extent the area of the land incapable of carrying tea or compulsorily acquired, transferred or resumed, as the case may be. (3) All areas of land in respect of which permission to plant tea is granted under this section shall be excluded when computing for the p urpose of section 13 the total area of land in respect of which the permission referred to in section 12 may be granted. (4) If any land falling within the Explanation to sub -section ( 1) is subsequently restored to the tea estate from which it was substrac ted, the owner of the estate shall either uproot the tea planted thereon, or uproot any tea planted by him in pursuance of a permission granted under sub -section ( 2). 16. Tea nurseries .(1) The owner of a tea estate may establish nurseries on land not prev iously planted with tea for the growing of plants intended for infilling or supplying vacancies or for replanting land planted with tea within the area of the estate or for any other purpose approved by the Board. (2) All area of land utilised for nurserie s in accordance with this section shall be excluded when computing for the purpose of section 13 the total area of land in respect of which the permissions referred to in section 12 may be granted. 10 1[CHAPTER IIIA MANAGEMENT OR CONTROL OF TEA UNDERTAKINGS O R TEA UNITS BY THE CENTRAL GOVERNMENT IN CERTAIN CIRCUMSTANCES 16A. Definitions .(1) In this Chapter, unless the context otherwise requires, (a) authorised person means the person or body of persons authorised, or appointed , by the Central Government un der this Act to take over the management of any tea undertaking or tea unit s; (b) company means a company within the meaning of section 3 of the Companies Act, 1956 (1 of 1956) ; (c) district average yield means the average yield of te a in the district in which one or more tea units are located, as published by the Board; (d) notified order means an order notified in the Official Gazette; (e) tea undertaking means an undertaking engaged in the production or manufacture, or both, of tea through one or more tea units; (f) tea unit means a tea estate or garden including a sub -division thereof, which has a distinct entity for which accounts are kept and has a factory of its own for the production and manufacture of tea. (2) Reference s to an industrial undertaking in such of the provisions of the Industr ies (Development and Regulation) Act, 1951 (65 of 1951), as apply to a tea undertaking or tea unit by virtue of the provisions of this Chapter, shall be construed as reference s to a tea undertaking or tea unit, as the case may be, and references in the Act aforesaid to any provision of that Act, as applicable to a tea undertaking or tea unit, in relation to which a corresponding provision has been made in this Act, shall be con strued as references to such corresponding provision. 16B. Power to cause investigation to be made in relation to a tea undertaking or tea unit .(1) Where the Central Government is of opinion in respect of a tea undertaking or a tea unit that (a) the tea undertaking or, as the case may be, the tea unit, has made losses in three out of five years immediately preceding the year in which such opinio n is formed; or (b) the average yield of the tea undertaking, or, as the case may be, the tea unit s, during three years out of five years immediately preceding the year in which such opinion is formed, has been lower than the district average yield by twen ty-five per cent, or more; or (c) the persons owning the tea undertaking, or, as the case may be, the tea unit, have habitually made default in the payment of wages, or provident fund dues of workers and other employees, or rent of the land, or duties of e xcise, or such other dues as they are under an obligation to pay under any law for the time being in force; or (d) the tea undertaking, or, as the case may be, the tea unit, is being managed in a manner highly detrimental to the tea industry or to public i nterest, the Central Government may make , or cause to be made, a full and complete investigation into the affairs of the tea undertaking or, as the case may be, the tea unit, by such person or body or persons as it may appoint for the purpose. (2) Where a company owning a tea undertaking is being wound up by or under the supervision of the Court and the business of such company is not being continued, the Central Government may, if it is of 1. Ins. by Act 75 of 1976, s. 2 (w.e.f. 11 -6-1976). 11 opinion that it is necessary, in the interests of the general publi c, and, in particular, in the interest of production, supply or distribution of tea, to investigate into the possibility of running or restarting the tea undertaking, make an application to the Court praying for permission to make, or cause to be made, an investigation into such possibility by such person or body or persons as that Government may appoint for the purpose; and, where such an application is made, the Court shall, notwithstanding anything contained in the Companies Act, 1956 (1 of 1956) , or in any other law for the time being in force, grant the permission prayed for. (3) The person or body of persons appointed to make any investigation under sub -section ( 1) or, as the case may be, sub -section ( 2), shall have the same powers as are specified in section 18 of the Industries (Development and Regulation) Act, 1951 (65 of 1951). 16C. Power of Central Government on completion of investigation .(1) If, after making or causing to be made any such investigation as is referred to in sub -section ( 1) of sec tion 16B, the Central Government is satisfied that action under this section is desirable, it may issue such directions to the tea undertaking or tea unit concerned, as may be appropriate in the circumstances, for all or any of the following purposes, name ly: (a) regulating the production of tea by the tea undertaking or, as the case may be, tea unit and fixing the standards of production; (b) requiring the tea undertaking or, as the case may be, tea unit to take such steps as the Central Government consid ers necessary to stimulate the production, manufacture or plantation, of tea; (c) prohibiting the tea undertaking or, as the case may be, tea unit from resorting to any act or practice which might reduce its production, capacity or economic value; (d) cont rolling the prices, or regulating the distribution, of tea produced or manufactured by the tea undertaking or, as the case may be, tea unit. (2) Where a case relating to any tea undertaking or tea unit is under investigation, the Central Government may iss ue, at any time, any direction of the nature referred to in sub -section ( 1) to the tea undertaking or the tea unit concerned and any such direction shall have effect until it is varied or revoked by the Central Government. 16D. Power of Central Government to assume management or control of tea undertaking or tea unit in certain cases .(1) If the Central Government is of opinion that (a) a tea undertaking or tea unit, to which directions have been issued in pursuance of section 16C has failed to comply with such directions, or the tea undertaking or, as the case may be , the tea unit, has made losses in three out of five years immediately preceding the year in which such opinion is formed; or (b) the average yield of the tea undertaking, or, as the case may be, the tea unit, during three years out of five years immediately preceding th e year in which such opinion is formed, has been lower than the district average yield by twenty five per cent or more; or (c) the persons owning the tea undertaking, or, as the case may be, the tea unit, have habitually made default in the payment of wage s, or provident fund dues of workers and other employees, or rent of the land, or duties of excise, or in the payment of such other dues as are obligatory under any law for the time being in force; or (d) the undertaking, or, as the case may be , the tea un it, is being managed in a manner highly detrimental to the tea industry or to public interest, 12 the Central Government may, by notified order, authorise any person or body of persons to take over the management of the whole or any part of the tea undertakin g or tea unit, as the case may be , or to exercise in respect of the whole or any part of the tea undertaking or , as the case may be, tea unit, such functions of control as may be specified in the order. (2) Any notified order issued under sub -section ( 1) shall have effect for such period, not exceeding five years as may be specified in the order: Provided that if the Central Government is of opinion that it is expedient in the public interest that any such notified order should continue to have effect after the expiry of the period of five years aforesaid, it may from time to time issue directions for such continuance for such period, not exceeding one year at a time, as may be specified in the direction, so, however, that the total period of such continuanc e (after the expiry of the said period of five years) does not exceed 1[six years]; and where any such direction is issued a copy thereof shall be laid, as soon as may be, before both Houses of Parliament. (3) Any notified order issued under sub -section ( 1) shall have the same effect as if it were an order made under sub -section ( 1) of section 18A of the Industries (Development and Regulation) Act, 1951 (65 of 1956) , and the provisions of section 18B of that Act shall apply accordingly. (4) Notw ithstanding anything contained in any law for the time being in force, no person, who cease s to hold any office by reason of the provisions contained in clause ( a), or whose contract of management is terminated by reason of the provisions contained in clau se (b), of section 18B of the Industries (Development and Regulation) Act, 1951 (65 of 1965) , as applicable to a tea undertaking or tea unit by virtue of the provisions of sub -section ( 3), shall be entitled to any compensation for the loss of office or for the premature termination of his contract of management: Provided that nothing contained in this section shall affect the right of any such person to recover from the tea undertaking or the tea unit, as the case may be, monies recoverable otherwise than b y way of such compensation. 16E. Power to take over tea undertaking or tea unit without investigation under certain circumstances .(1) Without prejudice to any other provision of this Act if , from the documentary or other evidence in its possession, the Ce ntral Government is satisfied, in relation to a tea undertaking or tea unit, that (a) the persons in charge of such tea undertaking or tea unit have, by reckless investment or 2[by] creation of incumbrances on the assets of the tea undertaking or tea unit , or by diversion of funds, brought about a situation which is likely to affect the production of tea manufactured or produced by the tea undertaking or tea unit , and that immediate action is necessary to prevent such a situation ; or (b) it has been closed for a period of not less than three months (whether by reason of the voluntary winding up of the company owning the tea undertaking or tea unit or for any other reason) and such closure is prejudicial to the concerned tea undertaking or tea , unit and that the financial condition of the company owning the tea undertaking or tea unit and the plant and machinery of such tea undertaking or tea unit are such that it is possible to restart the tea undertaking or tea unit and such restarting is necessary in the i nterests of the general public, it may, by notified order, authorise any person or body of persons to take over the management of the whole or any part of the tea undertaking or tea unit or to exercise in respect of the whole or any part of the tea undert aking or tea unit such functions of control as may be specified in the order.
whole or any part of the tea undert aking or tea unit such functions of control as may be specified in the order. 1. Subs. by Act 38 of 1983, s. 2, for two years (w.e.f. 7 -10-1983). 2. Ins. by Act 68 of 1980, s . 3 (w.e.f. 11 -6-1976). 13 1[Explanation .For the purpose of this sub -section, incumbrances includes any liability which may be recovered or satisfied from the assets of the tea undertaking or, as the ca se may be, tea unit or the person owning the tea undertaking or tea unit.] (2) On the issue of a notified order under sub -section ( 1) in respect of a tea undertaking or tea unit, (a) the provisions of sub -sections ( 2), (3) and ( 4) of section 16D, and the provisions of section 16G, shall apply to a notified order made under sub -section ( 1) as they apply to a notified order made under sub -section ( 1) of section 16D; and (b) the provisions of sub -sections ( 3) and ( 4) of section 18AA of the Industries (Develop ment and Regulation) Act, 1951 (65 of 1951), shall apply to the tea undertaking or tea unit, as the case may be, to the same extent as they apply to an industrial undertaking. 16F. Contracts in bad faith, etc. , may be cancelled or varied .Without prejudic e to the provisions of section 18B of the Industries (Development and Regulation) Act, 1951 (65 of 1951), as applicable to a tea undertaking or tea unit, as the case may be , the person or body of persons authorised under section 16D, or, as the case may be , section 16E, to take over the management of a tea undertaking or tea unit may, with the previous approval of the Central Government, make an application to any court having jurisdiction in this behalf for the purpose of cancelling or varying any contract or agreement entered into, at any time before the issue of the notified order under section 16D or section 16E, between the tea undertaking or the tea unit and any other person; and the court may, if satisfied after due inquiry that such contract or agree ment had been entered into in bad faith or is detrimental to the interests of the tea undertaking or tea unit, make an order cancelling or varying (either unconditionally or subject to such conditions as it may think fit to impose) that contract or agreeme nt, and the contract or agreement shall have effect accordingly. 16G. Application of Act 1 of 195 6.(1) Where the management of a tea undertaking or tea unit owned by a company has been taken over by any person or body of persons authorised by the Central Government under this Act, then, notwithstanding anything contained in the said Act or in the memorandum or articles of association of such company, (a) it shall not be lawful for the shareholders of such company or any other person to nominate or appoint any person to be a director of the company; (b) no resolution passed in a meeting of the shareholders of such company shall be given effect to unless approved by the Central Government; (c) no proceeding for the winding up of such company of for the appoi ntment of receiver in respect thereof shall lie in any court except with the consent of the Central Government. (2) Subject to the provisions contained in sub -section ( 1), and to the other provisions contained in this Act, and subject to such other excepti ons, restrictions and limitations , if any, as the Central Government may, by notification in the Official Gazette , specify in this behalf, the Companies Act, 1956 (1 of 1956) , shall continue to apply to such company in the same manner as it applied thereto before the issue of the notified order. 16H. Power of Central Government to cancel notified order under section 16D or 16E .If, at any time, it appears to the Central Government on the application of the owner of a tea undertaking or tea unit or otherwis e that the purpose of the order made under section 16D or section 16E, has been fulfilled or that for any other reason it is not necessary that the order should remain in force, the Central Government may, by notified order, cancel such order and, on the c ancellation of any such order, the 1. Ins. by Act 68 of 1980, s. 3 (w.e.f. 11 -6-1976). 14 management or control, as the case may be, of the tea undertaking or tea unit, as the case may be, shall vest in the owner of that undertaking or unit. 16-I. Power of Central Government to authorise, with the permission o f the Court , persons to take over management or control of tea undertakings or tea units .(1) If the Central Government is of opinion that there are possibilities of running or restarting a tea undertaking or tea unit in relation to which an investigation has been made under sub -section ( 2) of section 16B, and that such tea undertaking or tea unit should be run or restarted for maintaining or increasing the production, supply or distribution of tea, that Government may make an application to the Court by wh ich the company owning such tea undertaking or tea unit has been ordered to be wound up , praying for permission to appoint any person or body of persons to take over the management of the tea undertaking or, as the case may be, tea unit, or to exercise in respect of the whole or any part of the tea undertaking or tea unit, such functions of control as may be specified in the application. (2) Where an application is made under sub -section ( 1), (a) the provisions of sub -section ( 2) of section 18FA of the Ind ustries (Development and Regulation) Act, 1951 (65 of 1951), shall apply to the tea undertaking or tea unit, as the case may be, subject to the modification that for the words twelve years occurring in the second proviso thereto, the words 1[six years] s hall be substituted; (b) the provisions of sub -sections ( 3) to ( 10) (both inclusive) of section 18FA of the Industries (Development and Regulation) Act, 1951 (65 of 1951), shall apply to the tea undertaking or tea unit referred to in sub -section ( 1), to th e same extent as they apply to an industrial undertaking. 16J. Power of Central Government to make certain declarations in relation to tea undertakings or tea units. The Central Government may, if it is satisfied in relation to a tea undertaking, tea unit or any part thereof, the management or control of which has been taken over under section 16D or under section 16E or under section 16 -I, that it is necessary so do in the interests of the general public with a view to preventing fall in the volume of the production of tea, exercise in relation to such tea undertaking or tea unit or part thereof the same powers as are exercisable by it in relation to an industrial undertaking under section 18FB of the Industries (Development and Regulation) Act, 1951 (65 of 1951), , and the said section and the Third Schedule referred to therein shall apply to a tea undertaking or tea unit accordingly. 16K. Power of Central Government to call for report on the affairs and working of a managed tea undertaking or tea unit .(1) Where the management or control of a tea undertaking or tea unit, as the case may be, has been taken over under section 16D or under section 16E or under section 16 -I, the Central Government may, at any time during the continuance of such management or con trol, call for a report from the authorised person on the affairs and working of the tea undertaking or tea unit, and in submitting the report the authorised person shall take into account the inventory and list of members and creditors prepared under section 16L. (2) On receipt of the report submitted by the authorised person, the Central Government may exercise all or any of the powers conferred on it by sections 18FD, 18FE and 18FF of the Industries (Development and regulation) Act, 1951 (65 of 1951), to the same extent and subject to the same conditions, limitations or restrictions as are specified in the said sections, and the provisions of the said sections shall become applicable to a tea undertaking or tea unit, as the case may be. 16L. Preparation of an inventory of the assets and liabilities and list of members and creditors of managed tea undertaking or tea unit. For the purposes of this Act, the authorised person shall, as soon as may be after taking over the management of a tea undertaking or te a unit, prepare a complete 1. Subs. by Act 38 of 1983, s. 2, for two years (w.e.f. 7 -10-1983). 15 inventory of the properties, belongings, liabilities and obligations of such tea undertaking or tea unit, as the case may be, and a list of members and creditors of such tea undertaking or tea unit, in accordance with the provisi ons of section 18FG of the Industries (Development and Regulation) Act, 1951 (65 of 1951), and the said section shall apply to a tea undertaking or tea unit accordingly. 1[16LL. Debts incurred and investments made by the authorised person t o have priority. Every debt arising out of any loan or any other financial accommodation obtained by the authorised person for carrying on the management of, or exercising functions of control in relation to, the whole or any part of a tea undertaking or t ea unit, the management of which has been taken over or is purported to have been taken over under section 16D or section 16E or section 16 -I, (a) shall have priority over all other debts, whether secured or unsecured, incurred before the management of su ch tea undertaking or tea unit was taken over; (b) shall be a preferential debt within the meaning of section 530 of the Companies Act, 1956 (1 of 1956), and all such debts shall rank equally among themselves and be paid in full out of the as sets of the tea undertaking or tea unit, unless such assets are insufficient to meet them, in which case they shall be recoverable from the owner of the tea undertaking or tea unit as arrears of land revenue notwithstanding that the period of management or control has ended due to expiry of the period for which it was taken over or due to cancellation of the order under section 16H or in pursuance of the order of any court.] 16M. Bar of suits and other proceedings in relation to the tea undertakings or tea units.No suit or other legal proceedings shall be instituted or continued against a tea undertaking or tea unit in respect of which an order has been made under section 16D or section 16E, except with the previous permission of the Central Government or o f any officer authorised by that Government in this behalf. 16N. Rules made under Act 65 of 1951 to apply .Until any rule is made in relation to any matter referred to in this Chapter, the rules made by the Central Government under the Industries (Developm ent and Regulation) Act, 1951, in relation to such matter shall, as far as may be, apply, to the extent they are not repugnant to any provision of this Act or any rule made thereunder and references in such rules to the provisions of that Act shall be Cons trued accordingly.] CHAPTER IV CONTROL OVER THE EXPORT OF TEA AND TEA SEED 17. Control of export of tea and tea seed .(1) No tea shall be exported unless covered by a licence issued by or on behalf of the Board. (2) No tea seed shall be exported unless cov ered by a permit issued by or on behalf of the Central Government. (3) No tea or tea seed shall be taken by land, sea or air out of any State to any of the 2*** Portuguese Settlements bounded by India, unless covered by a permit issued by or on behalf of t he Board. 18. Tea or tea seed for export to be covered by licence or permit .(1) No consignment of tea or tea seed shall be shipped or waterborne to be shipped for export or shall be exported until the owner has delivered to the Customs -collector a valid export licence or special export licence or a valid permit issued by or on behalf of the Board or the Central Government, as the case may be , covering the quantity to be shipped. 1. Ins. by Act 68 of 1980, s. 4 (w.e.f. 11 -6-1976). 2. The words French or omitted by the A.O. (No. 3), 1 956 (w.e.f. 1 -11-1956). 16 (2) No consignment of tea or tea seed shall be shipped or waterborne to be sh ipped for carriage (or shall be taken by land or air) to any of the 1* * * Portuguese Settlements bounded by India until the owner has delivered to the Customs -collector a permit issued by or on behalf of the Board covering the quantity to be shipped. (3) No permit for the passage of any tea or tea seed by land into any of the 1* * * Portuguese Settlement bounded by India shall be granted under sub -section ( 1) of section 5 of the Land Customs Act, 1924 (19 of 1924) , unless the application for such permit is accompanied by a permit granted in this behalf by the Board covering the quantity to be passed. 19. Export allotment .The Central Government shall, after consulting the Board and paying due regard to all interests concerned and to the standard export figu re, declare by notification in the Official Gazette, the export allotment for each financial year: Provided that the Central Government may by subsequent notification at any time during , the financial year alter the export allotment and thereupon the expor t allotment as so altered shall be the export allotment for that year. 20. Export quotas and licences .(1) Subject to such conditions as may be prescribed, any tea estate or any sub -division of a tea estate shall have the right to receive under this Act an export quota for each financial year. (2) The export quota of a tea estate, or a sub -division of a tea estate, that is, the total quantity of tea which may be exported by the owner of a tea estate or a sub -division of a tea estate during the financial year, shall be an amount determined by the Board in accordance with such principles as may be prescribed: Provided that when an export allotment is altered under the provisions of section 19, the export quota shall be liable to be altered accordingly. (3) The total export quotas all
19, the export quota shall be liable to be altered accordingly. (3) The total export quotas allotted to tea estates and to sub -divisions thereof at any time during any financial year shall not exceed the export allotment for the time being for that year. 21. Right to export licences .(1) The owner of a tea estate or a sub -division of a tea estate to which an export quota has been allotted for any financial year shall have the right to obtain at any time export licences during that year to cover the export of tea up to the amount of the unexhausted balance of the quota, that is , up to the amount of the quota less the amount for which the export licences have already been issued against it. (2) The right of the owner of a tea estate or a sub -division of a tea estate under this section may be transferred subject to such conditions as may be prescribed, and the transferee of any such right may again transfer the whole or any part of his right to the owner of a tea estate, or a sub -division of a tea estate but not to any other person: Provided that nothing in this sub -section shall o perate to restrict the issue of licences for the export of tea expressed to be sold with export rights. (3) The owner of any tea estate or any sub -division of a tea estate to which an export quota has been allotted or any person to whom he has transferred his rights may at any time before the 21st day of March of the financial year to which the quota relates apply in writing to the Board for an export licence to cover the export of tea up to the amount of the amount of the unexhausted balance of the quota. 1. The words French or omitted by the A.O. (No. 3), 1956 (w.e.f. 1 -11-1956). 17 (4) Every licence shall be in duplicate in the prescribed form, shall bear the date of its issue and shall be valid up to the end of the financial year in which it is issued: Provided that, save as provided in section 22, the Board shall not issue any expo rt licence after the end of the financial year in which the application for licence was made. 22. Special Export Licences .(1) Where tea in respect of which an export licence has been or could have been granted under this Act has not been exported before t he end of the financial year in which the licence was or could have been issued, the person to whom the licence was or could have been granted may, before the 14th day of April of the following financial year forward an application to the Board for a speci al export licence covering the same quantity of tea, and the Board shall, on receipt of the prescribed fee, if any, issue a special export licence accordingly. (2) A person to whom a special export licence has been issued under sub -section ( 1) may transfer the special export licence with all the rights conferred thereby to a person or persons nominated by him, but a licence once so transferred shall not be further transferable. (3) A special licence shall be in duplicate in the prescribed form, shall bear t he date of its issue and shall be valid up to the 31st day of May of the financial year in which it was issued. (4) The quantity of tea covered by a special export licence shall be accounted for against the export quota of the year in which the original li cence was or could have been issued under this Act. (5) Notwithstanding anything contained in the foregoing sub -sections the Board may, with the general or special previous sanction of the Central Government, refuse to issue a special export licence or postpone for so long as the Central Government may require the issue of any special export licence. 23. Board to maintain accounts of quotas .(1) The Board shall maintain an account of every export quota showing, in addition to such other particulars as the B oard may think fit, the licences issued against it and the unexhausted balance. (2) Any owner of a tea estate or a sub -division of a tea estate shall be entitled, on payment of the requisite fee, to a copy of the account relating to his quota certified in the manner laid down in the by - laws made by the Board. 24. Limitation of application of chapter .Nothing in this Chapter shall apply to tea (a) proved to the satisfaction of the 1[Commissioner of Customs] to have been imported into India from any p art outside India; or (b) shipped as stores on board any vessel or aircraft in such quantity as the Customs -Collector considers reasonable having regard to the number of the crew and passengers and length of the voyage on which the vessel or aircraft is about to depart; or (c) exported by post in packages 2[not exceeding five kilograms] in weight ; or (d) exported with the previous sanction of the Central Government, within the limits prescribed in this behalf, by a Red Cross Society or by any organisation for pro viding amenities for troops overseas ; or (e) taken as part of the personal luggage of a passenger. 1. Subs. by Act 22 of 19 95, s. 86, for Customs Collector (w.e.f. 26-5-1995). 2. Subs . by Act 4 0 of 1960, s. 8, for not exceeding ten pounds avoirdu pois (w.e.f.1 -10-1960). 18 CHAPTER V FINANCE, ACCOUNTS AND AUDIT 1[25. Imposition Of Cess On Tea Produced In India. (1) There shall be levied and collected as a cess for the purposes o f this Act a duty of excise of all tea produced in India 2[at such rate not exceeding fifty paise per kilogram as the Central Government may, by notification in the Official Gazette, fix]: 3[Provided that different rates may be fixed for different varietie s or grades of tea having regard to the location of, and the climatic conditions prevailing in, the tea estates or gardens producing such varieties or grades of tea and any other circumstances applicable to such production.] (2) The duty of excise levied u nder sub -section ( 1) shall be in addition to the duty of excise leviable on tea under the Central Excises and Salt Act, 1944 (1 of 1944), or any other law for the time being in force. (3) The provisions of the Central Excises and Salt Act, 1944 (1 of 1944) , and the rules made thereunder, including those relating to refund and exemption from duty, shall so far as may be, apply in relation to the levy and collection of the duty of excise under this section as they apply in relation to the levy and collection of the duty of excise on tea under the said Act.] 26. Payment of proceeds of cess to the Board .The proceeds of the cess levied under sub -section (1) of section 25 shall first be credited to the Consolidated Fund of India, and the Central Government may th ereafter, from time to time, pay to the Board from and out of such proceeds such sums of money as it may think fit after deducting the expenses of collection. 4[26A. Grants and loans by the Central Government to the Board .The Central Government may, after due appropriation made by Parliament by law in this behalf, pay to the Board by way of grants of loans such sums of money as the Central Government may consider necessary.] 27. Constitution of Fund .(1) There shall be formed a Fund to be called the Tea Fu nd, and there shall be credited thereto : (a) the proceeds of the cess made over to the Board by the Central Government; 5[(aa) any sum of money including dividend, if any, realised by the Board in carrying out any measure referred to in clause ( jj) of sub -section ( 2) of section 10; ] 6[7(ab)] any sum of money that may be paid to the Board by way of grants of loans under section 26A; (b) all fees levied and collected in respect of licences, permits and permissions issued under this Act; and (c) any other fee that may be levied and collected under this Act or the rules made thereunder. (2) The Fund shall be applied towards meeting the expenses of the Board and the cost of the measures referred to in section 10. 1. Subs. by Act 21 of 1967, s. 4 , for s. 25 (w.e.f. 13 -8-1967) . 2. Subs. by Act 24 of 1986, s. 2, for at the rate of four paise per kilogram (w.e.f. 15 -8-1986). 3. Subs. by s. 2, ibid., for the proviso (w.e.f. 15 -8-1986). 4. Ins. by Act 22 of 1970, s. 2 (w.e.f. 2 3-5-1970). 5. Ins. by Act 68 of 1980, s. 5 , for clause ( aa) (w.e.f. 27 -12-1980) . 6. Ins. by Act 22 of 1970, s. 3 (w.e.f. 23 -5-1970). 7. Clause ( aa) re-lettered as clause ( ab) by Act 68 of 1980, s. 5 (w.e.f. 27 -12-1980). 19 28. Borrowing powers of Board .Subject to such rules as may be made in this behalf, the Board shall have power to borrow on the security of the Fund or any other asset for any purposes for which the Fund may be applied. 1[28A. Writing off of losses .Subject to such conditions as may be spe cified by the Central Government, where the Board is of opinion that any amount due to, or any loss, whether of money or of property, incurred by the Board is irrecoverable, the Board may, with the previous approval of the Central Government, sanction the writing off finally of the said amount or loss: Provided that no such approval of the Central Government shall be necessary where such irrecoverable amount or loss does not exceed in any individual case and in the agree gate in any year such amounts as may be prescribed.] 29. Accounts and audit .(1) The Board shall cause accounts to be kept of all money s received and expended by it. (2) The accounts shall be audited every year by auditors appointed in this behalf by the Central Government and such auditors s hall disallow every item, which in their opinion is not authorized by this Act or any rule made or direction issued thereunder. (3) The Board may, within three months from the date of communication to it of the disallowance of any item, as aforesaid appeal against such disallowance to the Central Government whose decision shall be final. CHAPTER VI CONTROL BY THE CENTRAL GOVERNMENT 30. Power to control price and distribution of tea or tea waste .(1) The Central Government may, by order notified in the Offic ial Gazette, fix in respect of tea of any description specified therein (a) the maximum price or the minimum price or the maximum and minimum prices which may be charged by a grower of tea, manufacturer or dealer, wholesale or retail, whether for the Indi an market or for export; (b) the maximum quantity which may in one transaction be sold to any person. (2) Any such order may for reasons to be specified therein (a) fix prices for such tea differently in different localities or for different classes of de alers, or for growers of tea or manufacturers; (b) instead of specifying the price or prices to be charged, direct that price or prices shall be computed in such manner and by reference to such matters as may be provided by the order. (3) The Central Gover nment may, by general or special order (a) prohibit the disposal of tea or tea waste except in such circumstances and under such conditions as may be specified in the order; (b) direct any person growing, manufacturing or holding in stock tea or tea waste to sell the whole or a part of such tea or tea waste so grown or manufactured during any specified period, or to sell the whole or a part of the tea or tea waste so held in stock, to such person or class of persons and in such circumstances as may be spec ified in the order; 1. Ins. by Act 24 of 1986, s. 3 (w.e.f. 15 -8-1986). 20 (c) regulate by licences, permits or otherwise the production, storage, transport or distribution of tea or tea waste. (4) Where in pursuance of any order made with reference to clause ( b) of sub -section ( 3), any person sells the whole or a part of any quantity of tea or tea waste, there shall be paid to him as price therefore (a) where the price can be fixed by agreement consistently with the order, if any, relating to the fixation of price issued under sub -section ( 1), the price so ag reed upon; (b) where no such agreement can be reached, the price calculated with reference to any such order as is referred to in clause ( a); (c) where neither clause ( a) nor clause ( b) applies, the price calculated at the market rate prevailing in the loc ality at the date of sale. (5) Without prejudice to the generality of the power s conferred by sub -section ( 1) and ( 3), any order made thereunder may provide (a) for requiring persons engaged in the production, supply or distribution of, or trade and comme rce in, tea or tea waste to maintain and produce for inspection such books, accounts and records relating to their business and to furnish such information relating there to as may be specified in the order; (b) for such other matters, including in particul ar the entering and search of premises, vehicles, vessels and aircraft, the seizure by a person authorized to make such search, of tea or tea waste in respect of which such person has reason to believe that a contravention of the order has been, is being or is about to be committed, the grant or issue of licences, permits or other documents and the charging of fees therefor. 31. General control over acts and proceedings of the Board .(1) All acts and proceedings of the Board shall be subject to the control of the Central Government which may cancel, suspend or modify as it think s fit any action taken by the Board. (2) The Board shall carry out such directions as may be issued to it from time to time by the Central Government for the efficient administration of this Act. (3) The records of the Board shall be open to inspection at all reasonab le times by any officer authoris ed in this behalf by the Central Government. 32. Appeal to Central Government .Any person aggrieved by an order of the Board under section 14, section 15 or section 20 may appeal to the Central Government within sixty days from the date thereof and the Central Government may cancel, modify or suspend any such order. CHAPTER VII MISCELLANEOUS
and the Central Government may cancel, modify or suspend any such order. CHAPTER VII MISCELLANEOUS 33. Licensing brokers, tea manufacturers, etc .The Central Government may whenever it thinks it necessary so to do, by notification in the Official Gazette require that no person shall on and from such date as may be specified in the notification engage himself as a broker, manufacturer or dealer in tea waste or engage himself in the business of blending tea except under and in accordance with the provisions of a licence issued by the Board in accordance with the rules made under this Act; and any person who on and after such date so engages himself without obtaining a licence issued by the Board shall be deemed to have contravened the provisions of this section. 34. Power of inspection .Any person authorized in this behalf by the Central Government or by the Board or any member so authorized by the Chairman in writing or any officer of the Board may enter at 21 all reasonable times any tea estate or any place or premises where tea or tea waste is stored, kept or exposed for sale and may require the production for his inspection of any book, register, record or other paper kept therein and ask for any information relating to the production, storage or keeping for sale of tea or tea waste. 35. Power of Board to call for returns .(1) The Board may serve by registered post a notice upon the owner of any tea estate o r any sub -division of a tea estate or upon his manager, requiring him to furnish, within such period as it may specify in the notice , such returns relating to the production, sale and export of tea produced on the estate or to any other matter as it may de em necessary. (2) Where the owner of any tea estate or any sub -division of a tea estate or his manager being required under sub -section ( 1) to furnish any return fails to furnish such return within the period specified in the notice or furnishes a return c ontaining any particular which is false and which he knows to be false or does not believe to be true, the Board may refuse to allot an export quota to that estate or sub -division under section 20, or where an export quota has already been allotted, may ca ncel the unexhausted balance of that quota and refuse to issue any further export licences against that quota or recognise or give effect to any transfer of quota under section 21. (3) The Board may serve by registered post a notice upon any manufacturer, broker, dealer or dealer in tea waste, requiring him to furnish, within such period as it may specify in the notice, such returns relating to the manufacture , stock, purchase, sale or export of tea or tea waste as it may deem necessary. 36. Penalty for ill icit export .A breach of the provisions of sub -section ( 1) or sub -section ( 2) of section 18 shall be punishable as if it were an offence under item No. 8 of section 167 of the Sea Customs Act, 1878 (8 of 1878) , and the provisions of section 168 and of Chap ter XVII of that Act shall apply accordingly. 37. Penalty for making false return .Any person who being required by or under this Act to furnish any return fails to furnish such return or furnishes a return containing any particular which is false and whic h he knows to be false or does not believe to be true shall be punishable with fine which may extend to one thousand rupees. 38. Penalty for obstructing an officer or member of the board in the discharge of his duties and for failure to produce books and records .Any person who (a) obstructs a member authorized by the Chairman in writing or an officer of the Board or a person authorized in this behalf by the Central Government or by the Board in the exercise of any power conferred, or in the discharge of any duty imposed, on him by or under this Act, or (b) having the control or custody of any account book or other period, fails to produce such book or record when require d to do so by or under this Act, shall be punishable with imprisonment which may exten d to one year , or with fine which may extend to one thousand rupees, or with both. 39. Penalty for illicit cultivation .Whoever knowingly plants tea or causes tea to be planted on any land in contravention of section 12 shall be punishable with fine which may extend to one thousand rupees for the first offence, and with fine which may extend to five thousand rupees for any subsequent offence. 40. Removal of tea planted without permission .Where any person has been convicted of any offence under section 39, the convicting Court may direct that the tea in respect of which the offence was committed shall be removed from the land within a specified time, and in the event of the order not being 22 duly complied with, may cause the tea to be removed and may recover t he cost from the person convicted as if it were an arrear of land revenue due on the tea estate on which the offence was committed. 41. Penalty for contravention of order relating to control of price and distributi on.(1) If any person contravenes any orde r made under sub -section ( 1) or sub -section ( 3) of section 30, he shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both, and the property in respect of which the order has been contravened or such part thereof as to the Court may seem fit shall be forfeited to the Central Government. (2) Any person who attempts to contravene or abets the contravention of, any order under sub-section ( 1) or sub-section ( 3) of section 30 shall be deemed to have contravened that order. 42. Other penalties .Whoever contravenes or attempts to contravene or abets the contravention of the provisions of this Act or of any rules made thereunder other than the provisi ons, punishment for the contravention whereof has been provided for in sections 36, 37, 38, 39 and 41 shall be punishable with imprisonment which may extend to six months, or with fine which may extend to five thousand rupees, or with both, and in the case of a continuing contravention with an additional fine which may extend to five hundred rupees for every day during which such contravention continues after conviction for the first such contravention. 43. Offences by companies .(1) If the person committin g an offence under this Act, or the rules thereunder is a company, every person, who at the time the contravention was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, s hall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub -section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub -section ( 1), where an offence under this Act or the rules thereunder has been committed by a company and it is proved that the offence has been committed with the consent or connivance of , or is attributable to any neglect on the part of any director or manager, secretary or other officer of the company such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation .For the purposes of this section (a) company means any body corporate and includes a firm or other than associat ion of individuals; and (b) director in relation to a firm means a partner in the firm. 44. Jurisdiction of courts .No Court inferior to that a Presidency Magistrate or a Magistrate of the First Class shall try any offence punishable under this Act. 45. Previous sanction of Central Government for prosecution .No prosecution for any offence punishable under this Act shall be instituted except with the previous sanction of the Central Government. 46. Protection of action taken in good faith .1[(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 under this Act of 2[any rule of order] made thereunder. 1. Section 46 re -numbered as sub -section (1) thereof by Act 68 of 1980, s. 6 (w.e.f. 27 -12-1980) . 2. Subs. by s. 6, ibid., for the rules (w.e.f. 27-12-1980) . 23 1[(2) No suit or other legal proceeding shall lie against the Centr al Government for any damage caused or likely to be caused by anything which is in good faith done or intended to be done under this Act or any rule or order made thereunder.] 47. Power to delegate .The Central Government may, by order notified in the Offi cial Gazette, direct that any power exercisable by it under this Act may also be exercised in such cases and subject to such conditions, if any, as may be specified in the order by such officer or authority as may be specified therein. 48. Suspension of op eration of Act.(1) If the Central Government is satisfied that circumstances have arisen rendering it necessary that certain of the restrictions imposed by this Act should cease to be imposed or if it considers it necessary or expedient so to do in the pu blic interest, the Central Government may, by notification in the Official Gazette, suspend or relax to a specified extent either indefinitely or for such period as may be specified in the notification the operation of all or any of the provisions of this Act. (2) Where the operation of any provisions of this Act has under sub -section ( 1) been suspended or relaxed indefinitely, such suspension or relaxation may at any time while this Act remains in force be removed by the Central Government by notification in the Official Gazette. 49. Power of Central Government to make rules .(1) The Central Government may, subject to the condition of previous publication, make rule for carrying out the purposes of this Act. (2) In particular, and without prejudice to the g enerality of the foregoing power, such rules may provide for all or any of the following matters, namely: (a) the constitution of the Board, the number of persons to be appointed as members from each of the categories specified in sub -section ( 3) of secti on 4, the term of office and the other conditions of service of, the procedure to be followed by, and the manner of filling vacancies among, the members of the Board; (b) the circumstances in which, and the authority by which, members may be removed; (c) the holding of a minimum number of meetings of the Board every year; (d) the pay, allowances and other conditions of service of the 2[Deputy Chairman, Secretary] and other officers appointed by the Central Government; (e) the maintenance of records of all b usiness transacted at meetings of the Board and the submission of copies of such records to the Central Government; (f) the conditions subject to which, and the mode in which, contracts may be made by or on behalf of the Board; (g) the preparation of budge t estimate of the receipts and expenditure of the Board and the authority by which such estimates shall be sanctioned; (h) the powers of the Board and the Executive Committee and the Chairman, in regard to the incurring of expenditure and the re -appropriat ion of estimated savings in any budget head to another such head; (i) the conditions subject to which the Board may incur expenditure; (j) the conditions subject to which the Board may borrow; 1. Ins. by Act 68 of 1980, s. 6 (w.e.f. 27-12-1980). 2. Subs. by Act 32 of 1977, s. 3, for Secretary (w.e.f. 12 -8-1977). 24 1[(ja) the amounts for the purposes of the provision to section 28A;] (k) the form and the manner in which accounts should be kept by the Board; (l) the basis on which the export quota of a tea estate or a sub -division of a tea estate shall be determined; (m) the conditions subject to which export quota, export licenc es and special export licences shall be transferable; (n) the conditions subject to which permits for the planting of tea on land not carrying tea shall be granted; (o) the collection of any information or statistics in respect of the tea industry and the tea trade; (p) the fees to be levied in respect of licences, permits and permissions issued under this Act; (q) the procedure for the grant or issue of licences, permits and permissions under this Act, the time within which such licences, permits or permis sions shall be granted or issued including, in particular, the publication of notices calling for applications and the holding of such inquiry in regard thereto as may be necessary in the circumstances; (r) the form of application for licences, permits or permissions under this Act; (s) the manner in which a broker or a dealer in tea waste or a manufacturer shall be licensed under this Act and the levy of fees in respect of such licence; (t) the matters which may be taken into account in the granting or iss uing of any licence, permit or permission under this Act including in particular the previous consultation with the Central Government by the Board in regard to the grant or issue of any such licences, permits or permissions; (u) the conditions which may b e included in any licences, permits or permissions; (v) the returns to be furnished by owners of tea estates, or sub -divisions thereof, manufacturers, dealers and brokers relating to the production, manufacture, stock , sale and export of tea and tea waste and the form and manner in which such returns are to be furnished; (w) the fees to be charged for granting certified copies of accounts of quotas; (x) any other fee that may be necessary for the Board to levy in order to determine or redetermine the basis on which export quota may be fixed; (y) any other matter which is to be or may be prescribed. 2[(3) Every rule made under this Act shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or 3[in two or more successive sessions, and if, before the expiry of the session immediately following the sessions or the successive sessions aforesaid] both houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.] 50. Power of Board to make by -laws .(1) The Board may make by -laws consistent with this Act and the rules made thereunder, to provide for 1. Ins. by Act
-laws consistent with this Act and the rules made thereunder, to provide for 1. Ins. by Act 24 of 1986, s. 4 (w.e.f. 15 -8-1986). 2. Subs. by Act 22 of 1970, s. 4, for sub -section ( 3) (w.e.f. 23 -5-1970). 3. Subs. by Act 32 of 1977, s. 3, for in two successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following, (w.e.f. 12 -8-1977). 25 (a) the dates, times and places of its meetings and of the meetings of the Executive and other Committees and quorum for such me etings, and the procedure there at; (b) the delegation of powers and duties to the Executive or any other Committee, or its Chairman, Vice -Chairman, 1[Deputy Chairman , Secretary] or a ny other of its officers; (c) the travelling allowances of members and of members of Committees; (d) the appointment, promotion and dismissal of its officers and other employees other than those appointed by the Central Government and the creation and abol ition of their posts; (e) the conditions of service of its officers and other employees other than those appointed by the Central Government, including their pay, leave, leave allowances, pensions, gratuities, compassionate allowances and travelling allowa nces and the establishment and maintenance of a provident fund for them; (f) the maintenance of its accounts; (g) the persons by whom, and the manner in which payments, deposits and investments may be made on its behalf; (h) the custody of moneys required for its current expenditure and the investment of moneys not so required; (i) the preparation of statements showing the sums allotted to Departments of the Central and State Governments and other institution s. (2) No by -law shall take effect until it has been confirmed by the Central Government and published in the Official Gazette, and the Central Government, in confirming a by -law may make any change therein which appears to be necessary. (3) The Central Government may, by notification in the Official Ga zette, cancel any by -law which it has confirmed and thereupon the by -laws shall cease to have effect. 2[(4) Every rule made by this section shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a to tal period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modifica tion in the by -law or both Houses agree that the by -law should not be made, the by -law shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without pre judice to the validity of anything previously done under that by -law.] 51. Repeals and savings .(1) The Indian Tea Control Act, 1938 (8 of 1938) , and the Central Tea Board Act, 1949 (13 of 1949) , are hereby repealed. (2) All moneys and other property and all rights and interests, or whatever kind, owned by, vested in, used, enjoyed or possessed by, or held in trust by or for, the Indian Tea Licensing Committee constituted under the Indian Tea Control Act, 1938 (8 of 1938) , and the Central Tea Board constit uted under the Central Tea Board Act, 1949 (13 of 1949) , as well as all liabilities legally subsisting against that Committee or that Board shall pass to the Board with effect from the commencement of this Act. 1. Subs. by Act 32 of 1977, s. 3, for Secretary (w.e.f. 12 -8-1977) . 2. Ins. by Act 4 of 1986, s. 2 and the Schedule (w.e.f. 15 -5-1986). 26 (3) All officers and other employees of the I ndian Tea Licensing Committee and the Central Tea Board who hold office as such immediately before the commencement of this Act shall be deemed to have been appointed as officers or other employees of the Board with effect from the commencement of this Act and, notwithstanding anything contained in any contract of service entered into by any such officer or other employee with the Indian Tea Licensing Committee or the Central Tea Board, shall be entitled to such pay and allowances and to such conditions of service in respect of other matters as may be determined by the Board with the approval of the Central Government. (4) Any proceedings taken by the Indian Tea Licensing Committee or the Central Tea Board before the commencement of this Act may be continued by the Board after such commencement. (5) Until action in that behalf is otherwise taken under the corresponding provisions of this Act or the rules made thereunder, all licences, permits and permissions issued or granted, all export quotas allotted and a ll fees fixed under the provisions of the Indian Tea Control Act, 1938 (8 of 1938) , shall unless inconsistent with the provisions of this Act, be deemed to have been issued, granted, allotted or fixed under the corresponding provisions of this Act and the rules made thereunder. (6) Any offence punishable under the Indian Tea Control Act, 1938 (8 of 1938) , or the Central Tea Board Act, 1949 (13 of 1949) , shall be punishable and may be dealt with as if it were an offence punishable under the corresponding pro visions of this Act. (7) Any other thing or action done or taken before the commencement of this Act by the Indian Tea Licensing Committee or the Central Tea Board shall so long as it is not inconsistent with any of the provisions of this Act, be as valid and effectual as if it had been done or taken by the Board after the commencement of this Act. (8) For the removal of doubts, it is hereby declared that the provisions contained in sub-section ( 2) to ( 7) inclusive shall be w ithout prejudice to the general application of section 6 of the General Clauses Act, 1897 (10 of 1897) . (9) If any difficulty arises in giving effect to any of the provisions of this Act, the Central Government may as occasion may arise, by order, do anyth ing which appears to be necessary for the purpose of removing the difficulty.
THE INFORMATION TECHNOLOGY ACT, 2000 ACT NO. 21 OF 2000 [9th June , 2000 .] An Act to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as electronic commerce , which involve the use of alternatives to paper -based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies and further to amend the Indian Penal Code, the Indian Evidence Act, 1872, t he Banker s Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental thereto . WHEREAS the General Assembly of the United Nations by resolution A/RES/51/162, dated the 30th January, 1997 has adopted the Model Law on Electronic Commerce adopted by the United Nations Commission on International Trade Law; AND WHEREAS the said resolution recommends inter alia , that all States give favourable consideration to the said Model Law when they enact or revise t heir laws, in view of the need for uniformity of the law applicable to alternatives to paper -based methods of communication and storage of information; AND WHEREAS it is considered necessary to give effect to the said resolution and to promote efficient delivery of Government services by means of reliable electronic records. BE it enacted by Parliament in the Fifty -first Year of the Republic of India as follows: CHAPTER 1 PRELIMINARY 1. Short title, extent, commencement and application. (1) This Act may be called the Information Technology Act, 2000. (2) It shall extend to the whole of India and, save as otherwise provided in this Act, it applies also to any offence or contravention thereunder committed outside India by any person. (3) It shall come into fo rce on such date1 as the Central Government may, by notificati on, appoint and different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the commencement of that provision. 2[(4) Nothing in this Act shall apply to documents or transactions specified in the First Schedule : Provided that the Central Government may, by notification in the Official Gazette, amend the First Schedule by way of a ddition or deletion of entries thereto. (5) Every notification issued under sub -section ( 4) shall be laid before each House of Parliament.] 2. Definitions .(1) In this Act, unless the context otherwise requires, (a) access with its grammatical variations and cognate expressions means gaining entry into, instructing or communicating with the logical, arithmetical , or memory function resources of a computer, computer system or computer network; (b) addressee means a person who is intended by the originator to receive the electronic record but does not include any intermediary; (c) adjudicating officer means an adjudicating officer appointed under sub -section ( 1) of section 46; 1. 17 th October, 2000, vide notification No. G.S.R. 788 (E), dated 17 th October, 2000, see Gazette of India, Extraordinary, Part II, sec. 3( ii). 2. Subs. by Act 10 of 2009, s. 3, for sub -section ( 4) (w.e.f. 27 -10-2009). 6 (d) affixing 1[electronic signature] with its grammatical variations and cognate expressions means adoption of any methodology or procedure by a person for the purpose of authenticating an electronic record by means of digital signature; 2[(da) Appellate Tribunal means the Appellate Tribun al referred to in sub-section ( 1) of section 48;] (e) appropriate Government means as respects any matter, (i) enumerated in List II of the Seventh Schedule to the Constitution; (ii) relating to any State law enacted under List III of the Sevent h Schedule to the Constitution, the State Government and in any other case, the Central Government; (f) asymmetric crypto system means a system of a secure key p air consisting of a private key for creating a digital signature and a public key to verify the digital signature; (g) Certifying Authority means a person who has be en granted a licence to issue a 1[electronic signature] Certificate under section 24; (h) certification practice statement means a statement issued by a Certifying Authority to speci fy the practices that the Certifyi ng Authority employs in issuing 1[electronic signature] Certificates; 3[(ha) communication device means cell phones, personal digital assistance or combination of both or any other device used to communicate, send or transmit any text, video, audio or image;] (i) computer means any electronic, magnetic, optical or other high -speed data processing de vice or system which performs logical, arithmetic , and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software or communication facilities which are connected or related to the computer in a computer system or computer network; 4[(j) computer network means the inter -connection of one or more compute rs or computer systems or communication device through (i) the use of satellite, microwave, terrestrial line, wire, wireless or other communication media; and (ii) terminals or a complex consisting of two or more interconnected computers or communic ation device whether or not the inter -connecti on is continuously maintained;] (k) computer resource means computer, computer system, computer network, data, computer data base or software; (l) computer system means a device or collection of devices, including input and output support devices and excluding calculators which are not programmable and cap able of being used in conjunction with external files , which contain computer programmes, electronic instructions, input data and output data , that performs logic, arithmetic, data storage and retrieval, communication control and other functions; (m) Cont roller means the Controller of Certifying Authorities appointed under sub -section ( 1) of section 17; 5* * * * * 2[(na) cyber cafe means any facility from where access to the internet is offered by any person in the ordinary course of busine ss to the members of the public ; 1. Subs. by Act 10 of 2009, s. 2, for digital signature (w.e.f. 27 -10-2009). 2. Ins. by Act 7 of 2017, s. 169 (w.e.f. 26 -5-2017) . 3. Ins. by Act 10 of 2009, s. 4, ibid. (w.e.f. 27 -10-2009). 4. Subs. by s. 4, ibid., for clause ( j) (w.e.f. 27 -10-2009). 5. Clause ( n) omitted by Act 7 of 2017, s.169 (w.e.f. 26 -5-2017) . 7 (nb) cyber security means protecting information, equipment , devices, computer, computer resource, communication device and information stored therein from unauthorised access, use, disclosure, disruption, modification or de struction; ] (o) data means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a c omputer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer; (p) digital signature means authentication of an y electronic record by a subscriber by means of an electronic method or procedure in accordance with the provisions of section 3; (q) Digital Signature Certificate means a Digital Signature Certificate issued under sub -section (4) of section 35; (r) electronic form with reference to information, means any information generated, sent, received or stored in media, magnetic, optical, computer memory, micro film, computer generated micro fiche or similar device; (s) Electronic Gazette means the Officia l Gazette published in the electronic form; (t) electronic record means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche; 1[(ta) electronic signature means aut hentication of any electronic record by a subscriber by means of the electronic technique specified in the Second Schedule and includes digital signature; (tb) Electronic Signature Certificate means an Electronic Signature Certificate issued under sectio n 35 and includes Digital Signature Certificate; ] (u) function , in relation to a computer, includes logic, control, arithmetical process, deletion, storage and retrieval and communication or telecommunication from or within a computer; 1[(ua) Indian Computer Emergency Response Team means an agency established under sub - section ( 1) of Section 7 0B;] (v) information includes 2[data, message, text,] images, sound, voice, codes, computer programmes, software and data bases or micro film or computer gene rated micro fiche; 3[(w) intermediary , with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web -hosting service providers, search engines, online payment sites, online -auction sites, onlin e-market places and cyber cafes; ] (x) key pair , in an asymmetric crypto system, mean s a private key and its mathematically related public key, which are so related that the public key can verify a digital signature created by the private key; (y) law includes any Act of Parliament or of a State Legislature, Ordinances promulgated by the President or a Governor, as the case may be, Regulations made by the President under article 240, Bills enacted as President's Act under sub -clause ( a) of clause ( 1) of article 357 of the Constitution and includes rules, regulations, bye -laws and orders issued or made thereunder; (z) licence means a licence granted to a Certifying Authority under section 24; (za) originator means a person who sends, generates, store s or t ransmits any electronic message or causes any electronic message to be sent, generated, stored or transmitted to any other person but does not include an intermediary; (zb) prescribed means prescribed by rules made under this Act; (zc) private key means the key of a key pair used to create a digital signature; 1. Ins. by Act 10 of 2009, s. 4 (w.e.f. 27 -10-2009). 2. Subs. by s. 4, ibid., for data, text (w.e.f. 27 -10-2009). 3. Subs. by s. 4, ibid., for clause ( w) (w.e.f. 27 -10-2009). 8 (zd) public key means the key of a key pair used to verify a digital signature and listed in the Digital Signature Certificate; (ze) secure system means computer hardware , software, and procedure that (a) are reasonably secure from unauthorised access and misuse; (b) provide a reasonable level of reliability and correct operation; (c) are reasonably suited to performing the intended functions; and (d) adhere to generally accepted securit y procedures; (zf) security procedure means the security procedure prescribed under section 16 by the Central Government; (zg) subscriber means a person in whose name the 1[electronic signature] Certificate is issued; (zh) verify , in relation to a di gital signature, electronic record or public key, with its grammatical variations and cognate expressio ns, means to determine whether (a) the initial electronic record was affixed with the digital signature by the use of private key corresponding to the p ublic key of the subscriber; (b) the initial electronic record is retained intact or has been altered since such electronic record was so affixed with the digital signature. (2) Any reference in this Act to any enactment or any provision thereof shall, in relation to an area in which such enactment or such provision is not in force, be construed as a reference to the corresponding law or the relevant provision of the corresponding law, if any, in force in that area . CHAPTER II 2[DIGITAL SIGNATURE AND ELECTRONIC SIGNATURE ] 3. Authentication of electronic records. (1) Subject to the provisions of this section any subscriber may authenticate an electronic record by affixing his digital signature. (2) The authentication of the electronic record shall be ef fected by the use of asymmetric crypto system and hash function which envelop and transform the initial electronic record into another electronic record. Explanation .For the purposes of this sub -section, hash function means an algorithm mapping or translation of one sequence of bits into another, generally smaller, set known as hash result such that an electronic record yields the same hash result every time the algorithm is executed with the same electronic record a s its input making it computationally infeasible (a) to derive or reconstruct the original electronic record from the hash result produced by the algorithm; (b) that two electronic records can produce the same hash result using the algorithm. (3) Any pers on by the use of a public key of the subscriber can verify the electronic record. (4) The private key and the public key are unique to the subscriber and constitute a functioning key pair. 3[3A. Electronic signature. (1) Notwithstanding anything contained in section 3, but subject to the provisions of sub -section ( 2), a subscriber may authenticate any electronic record by such electronic signature or electronic authentication technique which (a) is considered reliable; and (b) may be specified in the Secon d Schedule. (2) For the purposes of this section any electronic signature or electronic authentication technique shall be considered reliable if 1. Subs. by Act 10 of 2009, s. 2, for digital signature (w.e.f. 27 -10-2009). 2. Subs. by s. 5, ibid., for the heading D IGITAL SIGNATURE (w.e.f. 27 -10-2009). 3. Ins. by s. 6, ibid. (w.e.f. 27 -10-2009). 9 (a) the signature creation data or the authentication data are, within the context in which they are used, lin ked to the signatory or, as the case may be, the authenticator and to no other person; (b) the signature creation data or the authentication data were, at the time of signing, under the control of the signatory or,
(b) the signature creation data or the authentication data were, at the time of signing, under the control of the signatory or, as the case may be, the authenticator and of no other person; (c) any alteration to the electronic signature made after affixing such signature is detectable; (d) any alteration to the information made after its authentication by electronic signature is detectable; and (e) it fulfils such other c onditions which may be prescribed. (3) The Central Government may prescribe the procedure for the purpose of ascertaining whether electronic signature is that of the person by whom it is purported to have been affixed or authenticated. (4) The Central Gove rnment may, by notification in the Official Gazette, add to or omit any electronic signature or electronic authentication technique and the procedure for affixing such signature from the Second Schedule: Provided that no electronic signature or authenticat ion technique shall be specified in the Second Schedule unless such signature or technique is reliable. (5) Every notification issued under sub -section ( 4) shall be laid before each House of Parliament.] CHAPTER III ELECTRONIC GOVERNANCE 4. Legal recognition of electronic records .Where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been sa tisfied if such information or matter is (a) rendered or made available in an electronic form; and (b) accessible so as to be usable for a subsequent reference. 5. Legal recognition of 1[electronic signatures ].Where any law provides that information or any other matter shall be authenticated by affixing the signature or any document shall be signed or bear the signature of any person, then, notwithstanding anything contained in such law, such requirement shall b e deemed to have been satisfied, if such information or matter is authenticated by means of 1[electronic signature ] affixed in such manner as may be prescribed by the Central Government. Explanation .For the purposes of this section, signed , with its grammatical variations and cognate expressions, shall, with reference to a person, mean affixing of his hand written signature or any mark on any document and the expression signature shall be construed accordingly. 6. Use of electronic record s and 1[electronic signatures ] in Government and its agencies .(1) Where any law provides for (a) the filing of any form, application or any other document with any office, authority, body or agency owned or controlled by the appropriate Government in a particular manner; (b) the issue or grant of any licence, permit, sanction or approval by whatever name called in a particular manner; (c) the receipt or payment of money in a particular manner, then, notwithstanding anything contained in any other law for the time being in force, such requirement shall be deemed to have been satisfied if such filing, issue, grant, receipt or payment, as the case may be, is effected by means of such electronic form as may be prescribed by the appropriate Government. (2) The appropriate Government may, for the purposes of sub -section ( 1), by rules, prescribe (a) the manner and format in which such electronic records shall be filed, created or issued; 1. Subs. by Act 10 of 2009, s. 2, for digital signatures (w.e.f. 27 -10-2009). 10 (b) the manner or method of payment of any fee or charges for filing, creation or issue any electronic record under clause ( a). 1[6A. Delivery of services by service provider .(1) The appropriate Government may, for the purposes of this Chapter and for efficient delivery of services to the public through electronic means authorise, by order, any service provider to set up, maintain and upgrade the computerised facilities and perform such other services as it may specify, by notification in the Official Gazette. Explanation .For the purposes of this section, service provider so authorised includes any individual, private agency, private company, partnership firm, sole proprietor firm or any such other body or agency which has been granted permission by the appropr iate Government to offer services through electronic means in accordance with the policy governing such service sector. (2) The appropriate Government may also authorise any service provider authorised under sub-section ( 1) to collect, retain and appropriate such service charges, as may be prescribed by the appropriate Government for the purpose of providing such services, from the person availing such service. (3) Subject to the provisions of sub -section ( 2), the appropriate Government may aut horise the service providers to collect, retain and appropriate service charges under this section notwithstanding the fact that there is no express provision under the Act, rule, regulation or notification under which the service is provided to collect, r etain and appropriate e -service charges by the service providers. (4) The appropriate Government shall, by notification in the Official Gazette, specify the scale of service charges which may be charged and collected by the service providers under this sec tion: Provided that the appropriate Government may specify different scale of service charges for different types of services.] 7. Retention of electronic records .(1) Where any law provides that documents, records or information shall be retained for any specific period, then, that requirement shall be deemed to have been satisfied if such documents, records or information are retai ned in the electronic form, if (a) the information contained therein remains accessible so as to be usable for a subsequent reference; (b) the electronic record is retained in the format in which it was originally generated, sent or received or in a format which can be demonstrated to represent accurately the information originally generated, sent or received; (c) the details wh ich will facilitate the identification of the origin, destination, date and time of despatch or receipt of such electronic record are available in the electronic record: Provided that this clause does not apply to any information which is automatically gen erated solely for the purpose of enabling an electronic record to be despatched or received. (2) Nothing in this section shall apply to any law that expressly provides for the retention of documents, records or information in the form of electronic records . 2[7A. Audit of documents , etc., maintained in electronic form .Where in any law for the time being in force, there is a provision for audit of documents, records or information, that provision shall also be applicable for audit of documents, records or information processed and main tained in the electronic form.] 8. Publication of rule, regulation, etc., in Electronic Gazette .Where any law provides that any rule, regulation, order, bye -law, notification or any other matter shall be published in the Offi cial Gazette, then, such requirement shall be deemed to have been satisfied if such rule, regulation, order, bye -law, notification or any other matter is published in the Official Gazette or Electronic Gazette: Provided that where any rule, regulation, ord er, by -law, notification or any other matter is published in the Official Gaze tte or Electronic Gazette, the date of publication shall be deemed to be the date of the Gazette which was first published in any form. 9. Sections 6, 7 and 8 not to confer right to insist document should be accepted in electronic form .Nothing contained in sections 6, 7 and 8 shall confer a right upon any person to insist that any 1. Ins. by Act 10 of 2009, s. 7 (w.e.f. 27 -10-2009). 2. Ins. by s. 8, ibid. (w.e.f. 27 -10-2009). 11 Ministry or Department of the Central Government or the State Government or any authority or body established by or under any law or controlled or funded by the Central or State Government should accept, issue, create, retain and preserve any document in the form of electronic records or effect any monetary transaction in the electronic form. 10. Power t o make rules by Central Government in respect of 1[electronic signature ].The Central Government may, for the purposes of this Act, by rules, prescribe (a) the type of 1[electronic signature]; (b) the manner and format in which the 1[electronic signature] shall be affixed; (c) the manner or procedure which facilitates identification of the person affixing the 1[electronic signature]; (d) control processes and procedures to ensure adequate integrity, security and confidentiality of electronic rec ords or payments; and (e) any other matter which is ne cessary to give legal effect to 1[electronic signatures]. 2[10A. Validity of contracts formed through electronic means .Where in a contract formation, the communication of proposals, the acceptance of proposals, the revocation of proposals and acceptances , as the case may be, are expressed in electronic form or by means of an electronic records, such contract shall not be deemed to be unenforceable solely on the ground that such electronic form or means was used for that purpose.] CHAPTER IV ATTRIBUTION, ACKNOWLEDGMENT AND DESPATCH OF ELECTRONIC RECORDS 11. Attribution of electronic records .An electronic record shall be attributed to the originator (a) if it was sent by the originator himself; (b) by a person who had the authority to act on behalf of the originator in respect of that electronic record; or (c) by an information system programmed by or on behalf of the originator to operate automatically. 12. Acknowledg ment of receipt .(1) Where the originator has not 3[stipulated ] that the acknowledg ment of receipt of electronic record be given in a particular form or by a p articular method, an acknowledg ment may be given by (a) any communication by the addressee, automated or otherwise; or (b) any conduct of the addressee, sufficient to indicate to the originator that the electronic record has been received. (2) Where the originator has stipulated that the electronic record shall be binding only on receipt of an acknowledgment of such electronic record by him, then unless acknowledg ment has been so received, the electronic record shall he deemed to have been never sent by the originator. (3) Where the originator has not stipulated th at the electronic record shall be binding only on re ceipt of such acknowledgment, and the acknowledg ment has not been received by the originator within the time specified or agreed or, if no time has been specified or agreed to within a reasonable time, th en the originator may give notice to the addressee stating that no acknowledg ment has been received by him and specifying a reasonab le time by which the acknowledg ment must be recei ved by him and if no acknowledg ment is received within the aforesaid time l imit he may after giving notice to the addressee, treat the electronic record as though it has never been sent. 13. Time and place of despatch and receipt of electronic record .(1) Save as otherwise agreed to between the originator and the addressee, the despatch of an electronic record occurs when it enters a computer resource outside the control of the originator. 1. Subs. by Act 10 of 2009, s. 2, for digital signature (w.e.f. 27 -10-2009). 2. Ins. by s. 9, ibid. (w.e.f. 27 -10-2009). 3. Subs. by s. 10, ibid., for agreed with the addressee (w.e.f. 27 -10-2009). 12 (2) Save as otherwise agreed between the originator and the addressee, the time of receipt of an electronic record shall be determin ed as follows, namely: (a) if the addressee has designated a computer resource for the purpose of receiving electronic records, (i) receipt occurs at the time when the electronic record enters the designated computer resource; or (ii) if the electronic record is sent to a computer resource of the addressee that is not the designated computer resource, receipt occurs at the time when the electronic record is retrieved by the addressee; (b) if the addressee has not designated a computer res ource along with specified timings, if any, receipt occurs when the electronic record enters the computer resource of the addressee. (3) Save as otherwise agreed to between the originator and the addressee, an electronic record is deemed to be despatched a t the place where the originator has his place of business, and is deemed to be received at the place where the addressee has his place of business. (4) The provisions of sub -section ( 2) shall apply notwithstanding that the place where the computer resourc e is located may be different from the place where the electronic record is deemed to have been received under sub -section ( 3). (5) For the purposes of this section, (a) if the originator or the addressee has more than one place of business, the principal place of business, shall be the place of business; (b) if the originator or the addressee does not have a place of business, his usual place of residence shall be deemed to be the place of business; (c) usual place of residence , in relation to a body corporate, means the place where it is registered. CHAPTER V SECURE ELECTRONIC RECORDS AND SECURE 1[ELECTRONIC SIGNATURE ] 14. Secure electronic record .Where any security procedure has been applied to an electronic record at a specific point of time, then such record shall he deemed to be a secure electronic record from such point of time to the time of verification. 2[15. Secure electronic signature .An electronic signature shall be deemed to be a secure electronic signature if (i) the signature creation data, at the time of affixing signature, was under the exclusive control of signatory and no other person; and (ii) the signature creation data was stored and affixed in such exclusive manner as may be prescribed. Explanation. In case o f digital signature, the signature creation data means the private key of the subscriber. 16. Security procedure s and p ractices .The Central Government may, for the purposes of sections 14 and 15, prescribe the security procedures and practices: Provided that in prescribing such security procedures and practices, the Central Government shall have regard to the commercial circumstances, nature of transactions and such other related factors as it may consider appropriate.] CHAPTER VI REGULATION OF CERTIFYING AUTHORITIES 17. Appointment of Controller and other officers .(1) The Central Government may, by notification in the Official Gazette, appoint a Controller of Certifying Authorities for the purposes of this Act and may also by the same or subsequ ent notification appoint suc h number of Deputy Controllers 3[, Assistant Controllers, other officers and employees] as it deems fit. 1. Subs. by Act 10 of 2009, s. 2, for digital signature s (w.e.f. 27 -10-2009). 2. Subs. by s 11 , ibid., for sections 15 and 16 (w.e.f. 27 -10-2009). 3. Subs. by
5 and 16 (w.e.f. 27 -10-2009). 3. Subs. by s. 12, ibid., for and Assistant Controllers (w.e.f. 27 -10-2009). 13 (2) The Controller shall discharge his functions under this Act subject to the general control and directions of the Central Government. (3) The Deputy Controllers and Assistant Controllers shall perform the functions assigned to them by the Controller under the general superintendence and control of the Controller. (4) The qualifications, experience and terms and conditions of service of Controller, Deputy Controllers 1[,Assistant Controllers, other officers and employees] shall be such as may be prescribed by the Central Government. (5) The Head Office and Branch Offi ce of the office of the Controller shall be at such places as the Central Government may specify, and these may be established at such places as the Central Government may think fit. (6) There shall be a seal of the Office of the Controller. 18. Functions of Controller .The Controller may perform all or any of th e following functions, namely: (a) exercising supervision over the activities of the Certifying Authorities; (b) certifying public keys of the Certifying Authorities; (c) laying down the standards to be maintained by the Certifying Authorities; (d) specifying the qualifications and experience which employees of the Certifying Authority should possess; (e) specifying the conditions subject to which the Certifying Authorities shall conduct their busin ess; (f) specifying the contents of written, printed or visual materials and advertisements that may be distributed or used in respect of a 2[electronic signature] Certificate and the public key; (g) speci fying the form and content of a 2[electronic signature] Certificate and the key; (h) specifying the form and manner in which accounts shall be maintained by the Certifying Authorities; (i) specifying the terms and conditions subject to which auditors may be appointed and the remuneration to be paid to them; (j) facilitating the establishment of any electronic system by a Certifying Authority either solely or jointly with other Certifying Authorities and regulation of such systems; (k) specifying the manner in which the Certifying Authorities shall cond uct their dealings with the subscribers; (l) resolving any conflict of interests between the Certifying Authorities and the subscribers; (m) laying down the duties of the Certifying Authorities; (n) maintaining a data base containing the disclosure record of every Certifying Authority containing such particulars as may be specified by regulations, which shall be accessible to public. 19. Recognition of foreign Certifying Authorities .(1) Subject to such conditions and restrictions as may be specified by regulations, the Controller may with the previous approval of the Central Government, and by notification in the Official Gazette, recognise any foreign Certifying Authority as a Certifying Authority for the purposes of this Act. (2) Where any Certifying A uthority is recognised under sub -section ( 1), the 2[electronic signature] Certificate issued by such Certifying Authority shall be valid for the purposes of this Act. (3) The Controller may, if he is satisfied that any Certifying Authority has contravened any of the conditions and restrictions subject to which it was granted recognition under sub -section ( 1) he may, for reasons to be recorded in writing, by notification in the Official Gazette, revoke such recognition. 1. Subs. by Act 10 of 2009, s. 12, for Assistant Controllers (w.e.f. 27 -10-2009). 2. Subs. by s. 2, ibid., for Digital Signature (w.e.f. 27 -10-2009). 14 20. [Controller to act as repository .] Omitted by the Information Technology (Amendment ) Act, 2008 (10 of 2009), s. 13 ( w.e.f. 27-10-2009). 21. Licence to issue 1[electronic signature ] Certificates .(1) Subject to the provisions of sub-section ( 2), any person may make an application , to the Controller , for a licence to issue 1[electronic signature ] Certificates. (2) No licence shall be issued under sub -section ( 1), unless the applicant fulfil s such requirements with respect to qualification, expertise, manpower, financial resources and other infrastructure facilities, which ar e necessary to issue 1[electronic signature] Certificates as may be presc ribed by the Central Government. (3) A licence gr anted under this section shall (a) be valid for such period as may be prescribed by the Central Government; (b) not be transferable or heritable; (c) be subject to such terms and conditions as may be specified by the regulations. 22. Application for licence .(1) Every application for issue of a licence shall be in such form as may be prescribed by the Central Government. (2) Every application for issue of a licence shall be accompanied by (a) a ce rtification practice statement; (b) a statement including the procedures with respect to i dentifi cation of the applicant; (c) payment of such fees, not exceeding twenty -five thousand rupees as may be prescr ibed by the Central Government; (d) such other documents, as may be prescr ibed by the Central Government. 23. Renewal of licence .An application for renewal of a licence shall be (a) in such form; (b) accompanied by such fees, not exceeding five thousand rupees, as may be prescribed by the Central Government and shall be made not less than forty -five days before the date of expiry of the period of validity of the licence. 24. Procedure for grant or rejection of licence .The Controller may, on receipt of an application under sub -section ( 1) of section 21, after considering the documents accompanying the application and such other factor s, as he deems fit, grant the licence or reject the application: Provided that no application shall be rejected under this section unless the applicant has been given a reasonable opportunity of presenting his case. 25. Suspension of licence .(1) The Contr oller may, if he is satisfied after making such inquiry, as he may think fit, t hat a Certifying Authority has (a) made a statement in, or in relation to, the application for the issue or renewal of the licence, which is incorrect or false in material particulars; (b) failed to comply with the terms and conditions subject to which the licence was granted; 2[(c) failed to maintain the procedures and standards specified in section 30;] (d) contravened any provisions of this Act, rule, regu lation or order made thereunder, revoke the licence: Provided that no licence shall be revoked unless the Certifying Authority has been g iven a reasonable opportunity of showing cause against the proposed revocation. (2) The Controller may, if he has reasonable cause to believe that there is any ground for revoking a licence under sub -section ( 1), by order suspend such licence pending the c ompletion of any enquiry ordered by him: 1. Subs. by Act 10 of 2009, s. 2, for Digital Signature (w.e.f. 27 -10-2009). 2. Subs. by notification No. S.O. 1015(E) (w.e.f. 19 -9-2002 ). 15 Provided that no licence shall be suspended for a period exceeding ten days unless the Certifying Authority has been given a reasonable opportunity of showing cause against the proposed suspension. (3) No Certifying Authority whose licence has been suspended shall issue any 1[electronic signature] Certificate during such suspension. 26. Notice of suspension or revocation of licence .(1) Where the licence of the Certifying Authority is suspended or revoked, the Controller shall publish notice of such suspension or revocation, as the case may be, in t he data base maintained by him. (2) Where one or more repositories are specified, the Controller shall publi sh notices of such suspension or revocation, as the case ma y be, in all such repositories: Provided that the data base containing the notice of such suspension or revocation, as the case may be, shall be made available through a web site which shall be acc essible round the clock: Provided further that the Controller may, if he considers necessary, publicise the contents of data base in such electronic or other media, as he may consider appropriate. 27. Power to delegate .The Controller may, in writing, auth orise the Deputy Controller, Assistant Controller or any officer to exercise any of the powers of the Controller under this Chapter. 28. Power to investigate contraventions .(1) The Controller or any officer authorised by him in this behalf shall take up for investigation any contravention of the provisions of this Act, rules or regulations made thereunder. (2) The Controller or any officer authorised by him in this behalf shall exercise the like powers which are conferred on Income -tax authorities under Chapter XIII of the Income -tax Act, 1961 (43 of 1961), and shall exercise such powers, subject to such limita tions laid down under that Act. 29. Access to computers and data .(1) Without prejudice to the provisions of sub -section ( 1) of section 69, the Controller or any person authorised by him shall, if he has reasonable cause to suspect that 2[any contravention of the provisions of this Chapter] has been committed, have access to any computer system, any apparatus, data or any other material connected with such system, for the purpose of searching or causing a search to be made for obtaining any information or data contained in or available to such computer system. (2) For the p urposes of sub -section ( 1), the Controller or any person authorised by him may, by order, direct any person in charge of, or otherwise concerned with the operation of, the computer system, data apparatus or material, to provide him with such reasonable tec hnical and other assistance as he may consider necessary. 30. Certifying Authority to follow certain procedures .Every Certifying Authority shall, (a) make use of hardware, software and procedures that are secure from intrusion and misuse; (b) provide a reasonable level of reliability in its services which are reasonably suited to the performance of intended functions; (c) adhere to security procedures to ensure that the secrecy and privacy of the 1[electronic signatures] are assured; 3* 4[(ca) be the repository of all electronic signature Certificates issued under this Act; (cb) publish information regarding its practices, electronic signature Certificates and current status of such certificates; and ] (d) observe such other standards as may b e specified by regulations. 31. Certifying Authority to ensure compliance of the Act, etc .Every Certifying Authority shall ensure that every person employed or otherwise engaged by it complies, in the course of his employment or engagement, with the provisions of this Act, rules, regulations and orders made thereunder. 1. Subs. by Act 10 of 2009, s. 2, for Digital Signature (w.e.f. 27 -10-2009). 2. Subs. by s. 14, ibid., for any contravention of the provisions of this Act, rules and regulations made thereunder (w.e.f. 27 -10-2009). 3. The word and omitted by s. 15 , ibid. (w.e.f. 27 -10-2009). 4. Ins. by s. 15, ibid. (w.e.f. 27-10-2009). 16 32. Display of licence .Every Certifying Authority shall display its licence at a conspicuous place of the premises in which it carries on its business. 33. Surrender of licence .(1) Every Certifying Authority whose licence is suspended or revoked shall immediately after such susp ension or revocation, surrender the licence to the Controller. (2) Where any Certifying Authority fails to surrender a licence under sub -section ( 1), the person in whose favour a licence is issued, shall be guilty of an offence and shall be punished with imprisonment which may extend up to six months or a fine which may extend up to ten thousand rupees or with both. 34. Disclosure .(1) Every Certifying Authority shall disclose in the m anner specified by regulations (a) its 1[electronic signature] Certificate 2; (b) any certification practice statement relevant thereto; (c) notice of the revocation or suspension of its Certifying Authority certificate, if any; and (d) any other fact that materially and adversely affects either the relia bility of a 1[electronic signature] Certificate, which that Authority has issued, or the Authority's ability to perform its services. (2) Where in the opinion of the Certifying Authority any event has occurred or any situation has arisen which may materially and adversely affect the integrity of its computer system or the conditions subject to which a 1[electronic signature] Certificate was granted, then, the Certifying Authority shall (a) use reasonable efforts to notify any person who is likely to be affected by that occurrence; or (b) act in accordance with the procedure specified in its certification practice statement to deal with such event or situation. CHAPTERVII 1[ELECTRONIC SIGNATURE ] CERTIFICATE S 35. Certifying authority to issue 1[electronic signature ] Certificate .(1) Any person may make an application to the Certifying Authority for the issue of a 1[electronic signature] Certificate in such form as may be prescribed by the Central Government. (2) Every such application shall be accompanied by such fee not exceeding twenty -five thousand rupees as may be prescribed by the Central Government, to be paid to the Certifying Authority: Provided that while prescribing fees under sub -section ( 2) different f ees may be prescribed for different classes of applicants. (3) Every such application shall be accompanied by a certification practice statement or where there is no such statement, a statement containing such particulars, as may be specified by regulation s. (4) On receipt of an application under sub -section ( 1), the Certifying Authority may, after consideration of the certification practice statement or the other statement under sub -section ( 3) and after making such enquiries as it may deem fit, grant the 1[electronic signature] Certificate or for reasons to be recorded in writing, reject the application: 3 * * * * 4[Provided] that no application shall be rejected unless the applicant has been given a reasonable opportunity of showing cause against the proposed rejection. 36. Representations upon issuance of Digital Signature Certificate .A Certifying Authority while issuing a Digital Signature Certificate shall cert ify that (a) it has complied with the provisions of this Act and the rules and regu lations
ature Certificate shall cert ify that (a) it has complied with the provisions of this Act and the rules and regu lations made thereunder; (b) it has published the Digital Signature Certificate or otherwise made it available to such person relying on it and the subscriber has ac cepted it; 1. Subs. by Act 10 of 2009, s. 2, for Digital Signature (w.e.f. 27 -10-2009). 2. Certain words omitted by s. 16, ibid. (w.e.f. 27 -10-2009). 3. The first proviso omitted by s. 17, ibid. (w.e.f. 27 -10-2009). 4. Subs. by s. 17, ibid., for Provided further (w.e.f. 27 -10-2009). 17 (c) the subscriber holds the private key corresponding to the public key, listed in the Digital Signature Certificate; 1[(ca) the subscriber holds a private key which is capable of creating a digital signature; (cb) the public key to be listed in the certificate can be used to verify a digital signature affixed by the private key held by the subscriber;] (d) the subscriber's public key and private key constitute a functioning key pair; (e) the information contained in the Digital Signature Certificate is accurate; and (f) it has no knowledge of any material fact, which if it had been included in the Digital Signature Certificate would adversely affect the reliability of the representations in clauses ( a) to ( d). 37. Suspension of Digital Signature Certificate .(1) Subject to the provisions of sub -section ( 2), the Certifying Authority which has issued a Digital Signature Certificate may suspend such Digital Signature Certificate, (a) on receipt of a request to that effect from (i) the subscriber listed in the Di gital Signature Certificate; or (ii) any person duly authorised to ac t on behalf of that subscriber; (b) if it is of opinion that the Digital Signature Certificate should be suspended in public interest. (2) A Digital Signature Certificate shall not be sus pended for a period exceeding fifteen days unless the subscriber has been given an opportunity of being heard in the matter. (3) On suspension of a Digital Signature Certificate under this section, the Certifying Authority shall communicate the same to the subscriber. 38. Revocation of Digital Signature Certificate .(1) A Certifying Authority may revoke a Digital Signature Certificate issued by it (a) where the subscriber or any other person authorised by him mak es a request to that effect; or (b) upon the death of the subscriber; or (c) upon the dissolution of the firm or winding up of the company where the subscriber is a firm or a company. (2) Subject to the provisions of sub -section ( 3) and without prejudice to the provisions of sub-section ( 1), a Certifying Authority may revoke a Digital Signature Certificate which has been issued by it at any time, if it is of opini on that (a) a material fact represented in the Digital Signature Certificate is false or has been concealed ; (b) a requirement for issuance of the Digital Signature Certificate was not satisfied; (c) the Certifying Authority's private key or security system was compromised in a manner materially affecting the Digital Signa ture Certificate's reliability; (d) the subscr iber has been declared insolvent or dead or where a subscriber is a firm or a company, which has been dissolved, wound -up or otherwise ce ased to exist. (3) A Digital Signature Certificate shall not be revoked unless the subscriber has been given an opportu nity of being heard in the matter. (4) On revocation of a Digital Signature Certificate under this section, the Certifying Authority shall communicate the same to the subscriber. 39. Notice of suspension or revocation .(1) Where a Digital Signature Certifi cate is suspended or revoked under section 37 or section 38, the Certifying Authority shall publish a notice of such suspension or revocation, as the case may be, in the repository specified in the Digital Signature Certificate for publication of such noti ce. 1. Ins. by Act 10 of 2009, s. 18 (w.e.f. 27 -10-2009). 18 (2) Where one or more repositories are specified, the Certifying Authority shall publish notices of such suspension or revocation, as the case may be, in all such repositories. CHAPTER VIII DUTIES OF SUBSCRIBERS 40. Generating key pair .Where any Digital Signature Certificate the public key of which corresponds to the private key of that subscriber which is to be listed in the Digital Signature Certificate has been accepted by a subscriber, 1* the subscriber shall generate 2[that key] pair by app lying the security procedure. 3[40A. Duties of subscriber of Electronic Signature Certificate .In respect of Electronic Signature Certificate the subscriber shall perform such duties as may be prescribed.] 41. Acceptance of Digital Signature Certificate .(1) A subscriber shall be deemed to have accepted a Digital Signature Certificate if he publishes or authorises the publication of a Digital Signature Certificate (a) to one or more persons; (b) in a repository; or otherwise demonstrates his approval of the Digital Signa ture Certificate in any manner. (2) By accepting a Digital Signature Certificate the subscriber certifies to all who reasonably rely on the information contained in the Digi tal Signature Certificate that (a) the subscriber holds the private key corresponding to the public key listed in the Digital Signature Certificate and is entitled to hold the same; (b) all representations made by the subscriber to the Certifying Authority and all material relevant to the i nformation contained in the Digital Signature Certificate are true; (c) all information in the Digital Signature Certificate that is within the knowl edge of the subscriber is true. 42. Control of private key .(1) Every subscriber shall exercise reasonable care to retain control of the private key corresponding to the public key listed in his Digital Signature Certificate and take all steps to prevent its disclosure 4*. (2) If the private key corresponding to the public key listed in the Digital Signature Certificate has been compromised, then, the subscriber shall communicate the same without any delay to the Certifying Authority in such manner as may be specified by the regulations. Explanation .For the removal of doubts, it is hereby declared that the su bscriber shall be liable till he has informed the Certifying Authority that the private key has been compromised. CHAPTER IX 5[PENALTIES, COMPENSATION AND ADJUDICATION ] 43. 6[Penalty and compensation ] for damage to computer, computer system, etc .If any person without permission of the owner or any ot her person who is in charge of a computer, compu ter system or computer network, (a) accesses or secures access to such computer, compu ter system or computer network 7[or computer resource] ; 1. The word then omitted by notification No. S.O. 1015(E) (w.e.f. 19 -9-2002). 2. Subs. ibid., for the key (w.e.f. 19 -9-2002). 3. Ins. by Act 10 of 2009, s. 19 (w.e.f. 27 -10-2009). 4. The words to a person not authori sed to affix the digital signature of the subscriber omitted by notification No. S.O.1015(E) (w.e.f. 19 -9-2002). 5. Subs. by Act 10 of 2009, s. 20, for P ENALTIES AND ADJUDICATION (w.e.f. 27 -10-2009). 6. Subs. by s. 21, ibid., for Penalty (w.e.f. 27 -10-2009). 7. Ins. by s. 21, ibid. (w.e.f. 27 -10-2009). 19 (b) downloads, copies or extracts any data, computer data base or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium; (c) introduces or causes to be introduced any co mputer contaminant or computer virus into any computer, computer system or computer network; (d) damages or causes to be damaged any computer, computer system or computer network, data, computer data base or any other programmes residing in such computer, computer system or computer network; (e) disrupts or causes disruption of any computer, computer system or computer network; (f) denies or causes the denial of access to any person authorised to access any computer, computer system or computer network by a ny means; (g) provides any assistance to any person to facilitate access to a computer, computer system or computer network in contravention of the provisions of this Act, rules or regulations made thereunder; (h) charges the services availed of by a person to the account of another person by tampering with or manipulating any computer, compu ter system, or computer network; 1[(i) destroys, deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means; (j) steal, conceal, destroys or alters or causes any person to steal, conceal, destroy or alter any computer source code used for a computer resource with an intention to cause damage ;] 2[he shall be liable to pay damages by way of compens ation to the person so affected .] Explanation .For the purposes of this section, (i) computer contaminant means any set of computer instructions that are designed (a) to modify, destroy, record, transmit data or programme residing within a computer, computer system or computer network; or (b) by any means to usurp the normal operation of the computer, computer system, or computer network; (ii) computer data -base means a representation of information, knowledge, facts, concepts or instructions in text, image, audio, video that are being prepared or have been prepared in a formalised manner or have been produced by a computer, computer system or computer network and are intended for use in a computer, computer system or computer network; (iii) computer virus means any computer instruction, information, data or programme that destroys, damages, degrades or adversely affects the performance of a computer resource or attaches itself to another computer resource and operates when a programme, data or instruction is executed or some other event takes place in that computer resource; (iv) damage means to destroy, alter, delete, add, modify or rearrange any computer resource by any means. 1[(v) computer source code means the listing of programme, co mputer commands, design and layout and programme analysis of c omputer resource in any form.] 3[43A. Compensation for failure to protect data .Where a body corporate, possessing, dealing or handling any sensitive personal data or information in a computer resource which it owns, controls or operates, is negligent in implementing and maintaining reasonable security practices and procedures and thereby causes wrongful loss or wrongful gain to any person, such body corporate shall be liable to pay damages by way of co mpensation to the person so affected. 1. Ins. by Act 10 of 2009, s. 21 (w.e.f. 27 -10-2009). 2. Subs. by s. 21, ibid., for certain words (w.e.f. 27 -10-2009). 3. Ins . by s. 22, ibid. (w.e.f. 27 -10-2009). 20 Explanation .For the purposes of this section, (i) body corporate means any company and includes a firm, sole proprietorship or other association of individuals engaged in commercial or professional activities; (ii) reasonable security practices and procedures means security practices and procedures designed to protect such information from unauthorised access, damage, use, modification, disclosure or impairment, as may be specified in an agreement between the p arties or as may be specified in any law for the time being in force and in the absence of such agreement or any law, such reasonable security practices and procedures, as may be prescribed by the Central Government in consultation with such professional b odies or associations as it may deem fit; (iii) sensitive personal data or information means such personal information as may be prescribed by the Central Government in consultation with such professional bodies or associations as it may deem fit.] 44. Penalty for failure to furnish information, return, etc .If any person who is required under this Act or any rules or regulations made thereunder to (a) furnish any document, return or report to the Controller or the Certifying Authority fails to furnish t he same, he shall be liable to a penalty not exceeding one lakh and fifty thousan d rupees for each such failure; (b) file any return or furnish any information, books or other documents within the time specified therefor in the regulations fails to file re turn or furnish the same within the time specified therefor in the regulations, he shall be liable to a penalty not exceeding five thousand rupees for every day during which suc h failure continues; (c) maintain books of account or records , fails to maintai n the same, he shall be liable to a penalty not exceeding ten thousand rupees for every day duri ng which the failure continues. 45. Residuary penalty .Whoever contravenes any rules or regulations made under this Act, for the contravention of which no penalty has been separately provided, shall be liable to pay a compensation not exceeding twenty -five thousand rupees to the person affected by such contravention or a penalty not exceeding twenty -five thousand rupees. 46. Power to adjudicate .(1) For the purpose of adjudging under this Chapter whether any person has committed a contravention of any of the provisions of this Act or of any rule, regulation, 1[direction or order made thereunder which renders him liable to pay penalty or compensation ,] the Cen tral Government shall, subject to the provisions of sub -section ( 3), appoint any officer not below the rank of a Director to the Government of India or an equivalent officer of a Stat e Government to be an adjudicating officer for holding an inquiry in the manner prescribed by the Central Government. 2[(1A) The adjudicating officer appointed under sub -section ( 1) shall exercise jurisdiction to adjudicate matters in which the claim for injury or damage do es not exceed rupees five crore: Provided that the juri sdiction in respect of the claim for injury or damage exceeding rupees five crores shall vest with the competent court .] (2) The adjudicating officer shall, after giving the person
five crores shall vest with the competent court .] (2) The adjudicating officer shall, after giving the person referred to in sub -section ( 1) a reasonable opportunity for making represen tation in the matter and if, on such inquiry, he is satisfied that the person has committed the contravention, he may impose such penalty or award such compensation as he thinks fit in accordance with the provisions of that section. (3) No person shall be appointed as an adjudicating officer unless he possesses such experience in the field of Information Technology and legal or judicial experience as may be prescribed by the Central Government. (4) Where more than one adjudicating officers are appointed, th e Central Government shall specify by order the matters and places with respect to which such officers shall exercise their jurisdiction. (5) Every adjudicating officer shall have the powers of a civil court which are conferred on the Appellate Tribunal under sub -section ( 2) of section 58, and 1. Subs. by Act 10 of 2009, s. 23, for direction or order made thereunder (w.e.f. 27 -10-2009). 2. Ins. by s. 23, ibid. (w.e.f. 27 -10-2009). 21 (a) all proceedings before it shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code (45 of 1860); (b) shall be deemed to be a civil court for the purposes of sections 345 and 346 of the Code of Crimi nal Procedure, 1973 (2 of 1974); 1[(c) shall be deemed to be a civil court for purposes of Order XXI of the Civil Procedure Code , 1908 (5 of 1908) .] 47. Factors to be taken into account by the adjudicating officer .While adjudging the quantum of compensation under this Chapter, the adjudicating officer shall have due regard to the following factors, namely: (a) the amount of gain of unfair advantage, wherever quantifiable, m ade as a result of the default; (b) the amount of loss caused to any per son as a result of the default; (c) the re petitive nature of the default. CHAPTER X THE 2[APPELLATE TRIBUNAL ] 48. 3[Appellate Tribunal ].4[(1) The Telecom Disputes Settlement and Appellate Tribunal established under section 14 of the Telecom Regulatory Authority of India Act, 1997 (24 of 1997) , shall, on and from the commencement of Part XIV of Chapter VI of the Finance Act, 2017 (7 of 2017), be the Appellate Tribunal for the purposes of this Act and the said Appellate Tribunal shall exercise the jurisdiction, powers and authority confer red on it by or under this Act. ] (2) The Central Government 5[shall specify, by notif ication ] the matters and places in relation to which the 2[Appellate Tribunal ] may exercise jurisdiction. 6[49. [Composition of Cyber Appellate Tribunal .] Omitted by the Finance Act, 2017 (7 of 2017), s. 169 ( w.e.f . 26-5-2017). 50. [Qualifications for appointment as Chairperson and Members of Cyber Appellate Tribunal .] Omitted by s. 169, ibid. (w.e.f. 26-5-2017). 51. [Term of office, conditions of service, etc., of Chairperson and Members .] Omitted by s. 169, ibid. (w.e.f. 26-5-2017). 52. [Salary, allowances and other terms and conditions of service of Chairperson and Members .] Omitted by s. 169, ibid. (w.e.f. 26-5-2017). 52A. [Powers of superintendence, direction, etc .] Omitted by s. 169, ibid. (w.e.f. 26-5-2017). 52B. [Distribution of business among Benches. ] Omitted by s. 169, ibid. (w.e.f. 26-5-2017). 52C. [Power of Chairperson to transfer cases .] Omitted by s. 169, ibid. (w.e.f. 26-5-2017). 52D. Decision by majority .If the Members of a Bench consisting of two Members differ in opinion on any point, they shall state the point or points on which they differ, and make a reference to the Chairperson of the 2[Appellate Tribunal ] who shall hear the point or points himself and such point or points shall be decided according to the opinion of the majority of the Members who have heard the case, including those who first heard it.] 53. [Filling up of vacancies .] Omitted by the Financ e Act, 2017 (7 of 2017), s. 169 (w.e.f . 26-5-2017). 54. [Resignation and removal .] Omitted by s . 169 , ibid. (w.e.f . 26-5-2017). 55. Orders constituting Appellate Tribunal to be final and not to invalidate its proceedings .No order of the Central Government appointing any person as the 7[Chairperson or the Member] of a 2[Appellate Tribunal ] shall be called in question in any manner and no act or proceeding before a 1. Ins. by Act 10 of 2009, s. 23 (w.e.f. 27 -10-2009). 2. Subs. by Act 7 of 2017, s. 169, for Cyber Appellate Tribunal (w.e.f. 26 -5-2017) 3. Subs. by s. 169, ibid., for Establishment of Appellate Tribunal (w.e.f. 26 -5-2017). 4. Subs. by s. 169, ibid., for sub -section ( 1) (w.e.f. 26 -5-2017). 5. Subs. by s. 169, ibid., for shall also specify, in the notification referred to in sub -section ( 1) (w.e.f. 26 -5-2017). 6. Subs. by Act 10 of 2009, s. 2 6, for sections 49 to 52 (w.e.f. 27 -10-2009). 7. Subs. by s. 29, ibid., for Presiding Officer (w.e.f. 27 -10-2009). 22 1[Appellate Tribunal ] shall be called in question in any man ner on the ground merely of any defect in the constitution of a 1[Appellate Tribunal ]. 56. [Staff of the Cyber Appellate Tribunal .] Omitted by the Finance Act, 2017 (7 of 2017), s. 169 (w.e.f . 26-5-2017). 57. Appeal to 1[Appellate Tribunal ].(1) Save as provided in sub -section ( 2), any person aggrieved by an order made by controller or an adjudicating officer under this Act may prefer an appeal to a 1[Appellate Tribunal ] having jurisdict ion in the matter. (2) No appeal shall lie to the 1[Appellate Tribunal ] from an order made by an adjudicating officer with the consent of the parties. (3) Every appeal under sub -section ( 1) shall be filed within a period of forty -five days from the date on which a copy of the order made by the Controller or the adjud icating officer is received by the person aggrieved and it shall be in such form and be accompanied by such fee as may be prescribed: Provided that the 1[Appellate Tribunal ] may entertain an appeal after the expiry of the said period of forty -five days if it is satisfied that there was sufficient cause for not filing it within that period. (4) On receipt of an appeal under sub -section ( 1), the 1[Appellate Tribunal ] may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting as ide the order appealed against. (5) The 1[Appellate Tribunal ] shall send a copy of every order made by it to the parties to the appeal and to the concerned Cont roller or adjudicating officer. (6) The appeal filed before the 1[Appellate Tribunal ] under sub -section ( 1) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within six months from the date of receipt of the appeal. 58. Procedure and powers of the Appellate Tribunal ].(1) The 1[Appellate Tribunal ] shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the 1[Appellate Tribunal ] shall have powers to regulate its own procedure including the place at which it sh all have its sittings. (2) The 1[Appellate Tribunal ] shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely: (a) summoning and enforcing the attendance of any pe rson and examining him on oath; (b) requiring the discovery and production of documen ts or oth er electronic records; (c) receiving evidence on affidavits; (d) issuing commissions for the examina tion of witnesses or documents; (e) reviewing its decisions; (f) dismissing an application for d efault or deciding it ex parte ; (g) any other matter which may be prescribed. (3) Every proceeding before the 1[Appellate Tribunal ] shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196 of the Indian Penal Code (45 of 1860) and the 1[Appellate Tribunal ] shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974). 59. Right to legal representation .The appellant may either appear in person or authorise one or more legal practitioners or any of its officers to present his or its case before the 1[Appellate Tribunal ]. 60. Limitation .The provisions of the Limitation Act, 1963 (36 of 1963), shall, as far as may be, apply to an appeal made to the 1[Appellate Tribunal ]. 1. Subs. by Act 7 of 2017, s, 169 , for Cyber Appellate Tribunal (w.e.f. 26 -5-2017) 23 61. Civil court not to have jurisdiction .No court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an adjudicating officer appointed under this Act or the 1[Appellate Tribunal ] constituted under this Act is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. 62. Appeal to High Court .Any person aggrieved by a ny decision or order of the 1[Appellate Tribunal ] may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the 1[Appellate Tribunal ] to him on any question of fact or law arising out of such order: Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days. 63. Compounding of contravention s.(1) Any contravention under this 2[Act] may, either before or after the institution of adjudication proceedings, be compounded by the Controller or such other officer as may be specially authorised by him in this behalf or by the adjudicating officer, a s the case may be, subject to such conditions as the Controller or such other officer or the adjudicating officer may specify: Provided that such sum shall not, in any case, exceed the maximum amount of the penalty which may be imposed under this Act for t he contravention so compounded. (2) Nothing in sub -section ( 1) shall apply to a person who commits the same or similar contravention within a period of three years from the date on which the first contravention, committed by him, was compounded. Explanatio n.For the purposes of this sub -section, any second or subsequent contravention committed after the expiry of a period of three years from the date on which the contravention was previously compounded shall be deemed to be a first contravention. (3) Where any contravention has been compounded under sub -section ( 1), no proceeding or further proceeding, as the case may be, shall be taken against the person guilty of such contravention in respect of the contravention so compounded. 64. Recovery of 3[penalty or compensation ].A 4[penalty imposed or compensation awarded] under this Act, if it is not paid, shall he recovered as an arrear of land revenue and the licence or the 5[electronic signature] Certificate, as the case may be, shall be suspended till the p enalty is paid. CHAPTER XI OFFENCES 65. Tampering with computer source documents .Whoever knowingly or intentionally conceals, destroys or alters or intentionally or knowingly causes another to conceal, destroy, or alter any computer source code used for a computer, computer programme, computer system or computer network, when the computer source code is required to be kept or maintained by law for the time being in force, shall be punishable with imprisonment up to three years, or with fine which may exten d up to two lakh rupees, or with both. Explanation. For the purposes of this section, computer source code means the listing of programmes, computer commands, design and layout and programme analysis of computer resource in any form. 6[66. Computer related offences .If any person, dishonestly
programme analysis of computer resource in any form. 6[66. Computer related offences .If any person, dishonestly or fraudulently, does any act referred to in section 43, he shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both. 1. Subs. by Act 7 of 2017, s. 169, for Cyber Appellate Tribunal (w.e.f. 26 -5-2017) . 2. Subs. by notification No. S.O. 1015(E) (w.e.f. 19 -9-2002). 3. Subs. by Act 10 of 2009, s. 31, for penalty (w.e.f. 27 -10-2009). 4. Subs. by s. 31, ibid., for penalty imposed (w.e.f. 27 -10-2009). 5. Subs. by s. 2, ibid., for Digital Signature (w.e.f. 27 -10-2009). 6. Subs. by s. 32, ibid., for sections 66 and 67 (w.e.f. 27 -10-2009). 24 Explanation .For the purposes of this section, (a) the word dishonestly shall have the meaning assigned to it in section 24 of the Indian Penal Code (45 of 1860); (b) the word fraudulently shall have the meaning assigned to it in section 25 of the Indian Penal Code (45 of 1860). 1[66A. Punishment for sending offensive messages through communication service, etc. Any person who sends, by means of a computer reso urce or a communication device, (a) any information that is grossly offensive or has menac ing character; or (b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer r esource or a communication device ; (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with i mprisonment for a term which may extend to three years and with fine. Explanation .For the purpose s of this section, terms electronic mail and electronic mail message means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with t he message. ] 66B. Punishment for dishonestly receiving stolen computer resource or communication device .Whoever dishonestly receive or retains any stolen computer resource or communication device knowing or having reason to believe the same to be stolen c omputer resource or communication device, shall be punished with imprisonment of either description for a term which may extend to three years or with fine which may extend to rupees one lakh or with both. 66C. Punishment for identity theft .Whoever, fraud ulently or dishonestly make use of the electronic signature, password or any other unique identification feature of any other person, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be l iable to fine which may ex tend to rupees one lakh. 66D. Punishment for cheating by personation by using computer resource .Whoever, by means of any communication device or compute r resource cheats by personation , shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine whic h may extend to one lakh rupee s. 66E. Punishment for violation of privacy .Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both. Explanation .For the purposes of this section (a) transmit means to electronically send a visual image with the intent that it be viewed by a person or persons; (b) capture , with respect to an image, means to videotape, photograph, film or record by any means; (c) private area means the naked or undergarment clad genitals, public area, buttocks or female breast: (d) publishes means reproduction in the printed or electronic form and making it available for public; 1. Section 66A has been struck down by Supreme Court s Order dated 24th March, 2015 in the Shreya Sing hal vs. Union of India, AIR 2015 SC. 1523. 25 (e) under circumstances violating privacy means circumstances in which a person can hav e a reasonable expectation that (i) he or she could disrobe in privacy, without being concerned that an image of his private area was being captured; or (ii) any part of his or her private area would not be visible to the public, regardless of whether that person is in a public or private place. 66F. Punishment for cyber terrorism .(1) Whoever, (A) with intent to threaten the unity, integrity, security or soverei gnty of India or to strike terror in the people or any section of the people by (i) denying or cause the denial of access to any person authoris ed to access computer resource; or (ii) attempting to penetrate or access a computer resource without authorisa tion or exceeding authorised access; or (iii) introducing or causing to introduce any computer contaminan t, and by means of such conduct causes or is likely to cause death or injuries to persons or damage to or destruction of property or disrupts or knowing that it is likely to cause damage or disruption of supplies or services essential to the life of the community or adversely affect the critical information infrastructure specified under section 70 ; or (B) knowingly or intentionally penetrates or a ccesses a computer resource without authorisation or exceeding authorised access, and by means of such conduct obtains access to information, data or computer data base that is restricted for reasons of the security of the State or foreign relations ; or an y restricted information, data or computer data base, with reasons to believe that such information, data or computer data base so obtained may be used to cause or likely to cause injury to the interests of the sovereignty and integrity of India, the secur ity of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence, or to the advantage of any foreign nation, gro up of individuals or otherwise, commits the offence of cyber terrorism. (2) Whoever commits or conspires to commit cyber terrorism shall be punishable with imprisonment which may e xtend to imprisonment for life. 67. Punishment for publishing or transmitting obscene material in electronic form .Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having r egard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to fiv e lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees. 67A. Punishment for publishing or transmitting of ma terial containing sexually explicit act, etc., in electronic form .Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first convic tion with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees. 67B. Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form .Whoever, (a) publishes or transmits or causes to be p ublished or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct; or (b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner; or 26 (c) cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource; or (d) facilitates abusing children online, or (e) records in any electronic form own abuse or that of others pertaining to sexua lly explicit act with children, shall be punished on first conviction with imprisonm ent of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees: Provided that provisions of section 67, section 67A and this section does not extend to any book, pamphlet, paper, writing, drawing, painting representati on or figure in electronic form (i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing , drawing, painting representation or figure is the interest of science, literature, art or learning or other objects of gener al concern; or (ii) which is kept or used for bona fide heritage or religious purposes. Explanation For the purposes of this section , children means a person who has not completed the age of 18 years. 67C. Preservation and retention of information by intermediaries .(1) Intermediary shall preserve and retain such information as may be specified for such duration and in such manner and format as the Central Government may prescribe. (2) any intermediary who intentionally or knowingly contravenes the provisions of sub -section ( 1) shall be punished with an imprisonment for a term which may extend to three years and also be liable to fine.] 68. Power of Controller to give directions .(1) The Controller may, by order, direct a Certifying Authority or any employee of such Authority to take such measures or cease carrying on such activities as specified in the order if those are necessary to ensure compliance with the provisions of this Act, rules or any regulations made thereunder. 1[(2) Any person who inte ntionally or knowingly fails to comply with any order under sub -section ( 1) shall be guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding two years or a fine not exceeding one lakh rupees or with both.] 2[69. Power to issue directions for interception or monitoring or decryption of any information through any computer resource .(1) Where the Central Government or a State Government or any of its officer s specially authorised by the Central Government or the Sta te Government, as the case may be, in this behalf may, if satisfied that it is necessary or expedient so to do , in the interest of the sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or pub lic order or for preventing incitement to the commission of any cognizable offence relating to above or for investigation of any offence, it may subject to the provisions of sub -section ( 2), for reasons to be recorded in writing, by order, direct any agenc y of the appropriate Government to intercept, monitor or decrypt or cause to be intercepted or monitored or decrypted any information generated, transmitted, received or stored in any computer resource. (2) The procedure and safeguards subject to which suc h interception or monitoring or decryption may be carried out, shall be such as may be prescribed. (3) The subscriber or intermediary or any person in -charge of the computer resource shall, when called upon by any agency referred to in sub -section ( 1), extend all facilit ies and technical assistance to (a) provide access to or secure access to the computer resource generating , transmitting, receiving or storing such information; or (b) intercept, monitor, or decrypt the information, as the case may be; o r (c) provide information stored in computer resource. 1. Subs. by Act 10 of 2009, s. 33, for sub-section ( 2) (w.e.f. 27 -10-2009). 2. Subs. by s. 34, ibid., for section 69 (w.e.f. 27 -10-2009). 27 (4) The subscriber or intermediary or any person who fails to assist the agency referred to in sub-section ( 3) shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine. 69A. Power to issue directions for blocking for public access of any information through any computer resource .(1) Where the Central Government or any of its officers specially authorised by it in this behalf is satisfied that it is necessary or expedient so to do , in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with for eign States or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of sub -section ( 2), for reasons to be recorded in writing, by order, direct any agency of the Governmen t or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource. (2) The procedure and safeguards subject to which such blocking for access by the public may be carried out, shall be such as may be prescribed. (3) The intermediary who fails to comply with the direction issued under sub -section ( 1) shall be punished with an imprisonment for a term which may extend to seven years and also be liable to fine. 69B. Power to authorise to monitor and collect traffic data or information through any computer resource for cyber security .(1) The Central Government may, to enhance cyber security and for identification, analysis and prevention of intrusion or spread of computer contaminant in the country, by notification in the Official Gazette, authorise any agency of the Government to monitor and collect traffic data or information generated
the country, by notification in the Official Gazette, authorise any agency of the Government to monitor and collect traffic data or information generated, transmitted, received or stored in any computer res ource. (2) The intermediary or any person in -charge or the computer resource shall, when called upon by the agency which has been authorised under sub -section ( 1), provide technical assistance and extend all facilities to such agency to enable online acces s or to secure and provide online access to the computer resource generating, transmitting, receiving or storing such traffic data or information. (3) The procedure and safeguards for monitoring and collecting traffic data or information, shall be such as may be prescribed. (4) Any intermediary who intentionally or knowingly contravenes the provisions of sub -section ( 2) shall be punished with an imprisonment for a term which any extend to three years and shall also be liable to fine. Explanation .For the purposes of this section, (i) computer contaminant shall have the meaning assigned to it in section 43; (ii) traffic data means any data identifying or purporting to identify any person, computer system or computer network or location to or from which the communication is or may be transmitted and includes communications origin, destination, route, time, data, size, duration or type of underlying service and any other information.] 70. Protected system .1[(1) The appropriate Government may, by notifica tion in the Official Gazette, declare any computer resource which directly or indirectly affects the facility of Critical Information Infrastructure, to be a protected system. Explanation .For the purposes of this section, Critical Information Infrastructure means the computer resource, the incapacitation or destruction of which, shall have debilitating impact on national security, economy, public health or safety.] (2) The appropriate Government may, by order in writing, authorise the persons who are authorised to access protected systems notified under sub -section ( 1). (3) Any person who secures access or attempts to secure access to a protected system in contravention of the provisions of this section shall be punished with imprisonment of ei ther description for a term which may extend to ten years and shall also be liable to fine. 2[(4) The Central Government shall prescribe the information security practices and procedures for such protected system.] 3[70A. National nodal agency .(1) The Cen tral Government may, by notification published in the Official Gazette, designate any organisation of the Government as the national nodal agency in respect of Critical Information Infrastructure Protection. 1. Subs. by Act 10 of 2009, s. 35, for sub -section ( 1) (w.e.f. 27-10-2009). 2. Ins. by s. 35, ibid. (w.e.f. 27-10-2009). 3. Ins. by s. 36, ibid. (w.e.f. 27 -10-2009). 28 (2) The national nodal agency designated under sub-section ( 1) shall be responsible for all measures including Research and Development relating to protection of Critical Information Infrastructure. (3) The manner of performing functions and duties of the agency referred to in sub -section ( 1) shall be such as may be prescribed. 70B. Indian Computer Emergency Response Team to serve as national agency for incident response .(1) The Central Government shall, by notification in the Official Gazette, appoint an agency of the Governmen t to be called the India n Compu ter Emergency Response Team. (2) The Central Government shall provide the agency referred to in sub -section ( 1) with a Director General and such other officers and employees as may be prescribed. (3) The salary and allowances and terms and condition s of the Directo r-General and other officers and employees shall be such as may be prescribed. (4) The Indian Computer Emergency Response Team shall serve as the national agency for performing the following functions in the area of cyber security, (a) collection, analysis and dissemination of information on cyber incidents; (b) forecast and alerts of cyber security incidents; (c) emergency measures for handling cyber security incidents; (d) coordination of cyber incidents response activities; (e) issue guidelines, advisories, vulnerability notes and white papers relating to information security practices, procedures, preventation, response and reporting of cyber incidents; (f) such other functions relating to cyber security as may be prescribed. (5) The manner of performing functions and duties of the agency referred to in sub -section ( 1) shall be such as may be prescribed. (6) For carrying out the provisions of sub -section ( 4), the agency referred to in sub -section ( 1) may call for information and give direction to the service providers, intermediaries, data centres, body corporate and any other person. (7) Any service provider, intermediaries, data centres, body corporate or person who fails to provide the information called for or comply with the direc tion under sub -section ( 6), shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to one lakh rupees or with both. (8) No court shall take cognizance of any offence under this section, except on a compl aint made by an officer authorised in this behalf by the agency referred to in sub -section ( 1).] 71. Penalty for misrepresentation .Whoever makes any misrepresentation to, or suppresses any material fact from the Controller or the Certifying Authority for obtaining any licence or 1[electronic signature] Certificate, as the case may be, shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both. 72. Penalty for Breach of confidentiality and privacy .Save as otherwise provided in this Act or any other law for the time being in force, if any person who, in pursuance of any of the powers conferred under this Act, rules or regulations made thereunder, has secured access to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned discloses such electronic record, book, register, correspondence, information, document or other material to any other p erson shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both. 2[72A. Punishment for disclosure of information in breach of lawful contract .Save as otherwise provided in this Act or any other law for the time being in force, any person including an intermediary who, while providing services under the terms of lawful contract, has secured access to any material containing personal information about another person, with the intent to cause or knowing that he is likely 1. Subs. by Act 10 of 2009, s. 2 , for Digital Signature (w.e.f. 27 -10-2009). 2. Ins. by s. 37, ibid. (w.e.f. 27 -10-2009). 29 to cause wrongful loss or wrongful gain discloses, without the consent of the person concerned, or in breach of a lawful contract, such material to any other person, shall be punished with imprisonment for a term which may extend to three years, or with fine which may extend to five lakh rupees, or with both. ] 73. Penalty for publishing 1[electronic signature ] Certificate false in certain particulars .(1) No person shall publish a 1[electronic signature] Certificate or otherwise make it available to any other person with the knowledge that (a) the Certifying Authority listed in the certificate has not issued it; or (b) the subscriber listed in the certificate has not accepted it; or (c) the certificate has been revoked or suspended, unless such publication is for the purpose of verifying a 1[electronic signature] created prior to such suspension or revocation. (2) Any person who contravenes the provisions of sub -section ( 1) shall be punishe d with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both. 74. Publication for fraudulent purpose .Whoever knowingly creates, publishes or otherwise makes available a 1[electronic signature ] Certificate for any fraudulent or unlawful purpose shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both. 75. Act to apply for offence or contravention committed outside India .(1) Subject to the provisions of sub -section ( 2), the provisions of this Act shall apply also to any offence or contravention committed outside India by any person i rrespective of his nationality. (2) For the purposes of sub -section ( 1), thi s Act shall apply to an offence or contravention committed outside India by any person if the act or conduct constituting the offence or contravention involves a computer, computer system or com puter network located in India. 76. Confiscation .Any computer , computer system, floppies, compact disks, tape drives or any other accessories related thereto, in respect of which any provision of this Act, rules, orders or regulations made thereunder has been or is being contravened, shall be liable to confiscation: Provided that where it is established to the satisfaction of the court adjudicating the confiscation that the person in whose possession, power or control of any such computer, computer system, floppies, compact disks, tape drives or any other accessories relating thereto is found is not responsible for the contravention of the provisions of this Act, rules, orders or regulations made thereunder, the court may, instead of making an order for confiscation of such computer, computer system, floppies, compact disks, tape drives or any other accessories related thereto, make such other order authorised by this Act against the person contravening of the provisions of this Act, rules, orders or regulations made thereunder as it may think fit. 1[77. Compensation, penalties or confiscation not to interfere with other punishment .No compensation awarded, penalty imposed or confiscation made under this Act shall prevent the award of compensation or imposition of any other penalty or punishment under any other law for the time being in force. 77A. Compounding of offences .A court of competent jurisdiction may compound offences, other than offences for which the punishment for life or imprisonment for a term exceeding three years has been provided, under this Act: Provid ed that the court shall not compound such offence where the accused is, by reason of his previous conviction, liable to either enhanced punishment or to a punishment of a different kind: Provided further that the court shall not compound any offence where such offence affects the socio economic conditions of the country or has been committed against a child below the age of 18 years or a woman. 1. Subs. by Act 10 of 2009, s. 38 , for section 77 (w.e.f. 27 -10-2009). 30 (2) The person accused of an offence under this Act may file an application for compounding in the court in which offence is pending f or trial and the provisions of sections 265B and 265C of the Code of Crimin al Procedure, 1973 (2 of 1974) shall apply. 77B. Offences with three years imprisonment to be bailable .Notwithstanding anything contained in the Code of Crimina l Procedure, 1973 (2 of 1974), the offence punishable with imprisonment of three years and above shall be cognizable and the offence punishable with imprisonment of three years shall be bailable.] 78. Power to investigate offences .Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), a police officer not below the rank of 1[Inspector] shall investigate any offence under this Act. 2[CHAPTER XII INTERMEDIARIES NOT TO BE LIABLE IN CERTAIN CASES 79. Exemption from liability of intermediary in certain cases .(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub -sections ( 2) and ( 3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him. (2) The provisions of sub -section ( 1) shall apply if (a) the function of the intermediary is limited to providing access to a communication system over which information made availa ble by third parties is transmitted or temporarily stored or hosted; or (b) the intermediary does not (i) initiate the transmission, (ii) select the receiver of the transmission, and (iii) select or modify the information contained in the transmission; (c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf. (3) The provisions of sub -section ( 1) shall not apply if (a) the intermed iary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act; (b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner. Explanation. For the purposes of this section, the expression third party information means any information dealt with by an intermediary in his capacity as an intermediary. CHAPTER XIIA EXAMINER OF ELECTRONIC EVIDENCE 79A. Central Government to notify Examiner of Electronic Evidence .The Central Government may, for the purposes of providing expert opinion on electronic form evidence before any court or other authority specify, by notification in the Official Ga zette, any Department, body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence. Explanation. For the purposes of this section, electronic form evidence means any information of probative value that is either s tored or transmitted in electronic form and includes computer evidence, digital audio, digital video, cel l phones, digital fax machines. ] 1. Subs. by Act 10 of 2009, s. 39, for Deputy Superintendent of Police (w.e.f. 27 -10-2009). 2. Subs. by, s. 40 , ibid., for Chapter XII (w.e.f. 27 -10-2009). 31 CHAPTER XIII MISCELLANEOUS 80. Power of police officer and other officers to enter,
31 CHAPTER XIII MISCELLANEOUS 80. Power of police officer and other officers to enter, search, etc .(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), any police o fficer, not below the rank of a 1[Inspector], or any other officer of the Central Government or a State Government authorised by the Central Government in this behalf may enter any public place and search and arrest without warrant any person found therein who is reasonably suspected of having committed or of committing or of being about to commit any offence under this Act. Explanation. For the purposes of this sub -section , the expression public place includes any public conveyance, any hotel, any shop or any other place intended for use by, or accessible to the public. (2) Where any person is arrested under sub -section ( 1) by an officer other than a police officer, such officer shall, without unnecessary delay, take or send the person arrested before a magistrate having jurisdiction in the case or before the officer -in-charge of a police station. (3) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall , subject to the provisions of this section, apply, so far as may be, in relation to any entry, search or arrest, made under this section. 81. Act to have overriding effect .The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. 2[Provided that nothing contained in this Act shall restrict any person from exercising any right conferred under the Copyright Act, 1957 (14 of 1957) or the Patents Act, 1970 (39 of 1970) .] 3[81A. Application of the Act to electronic cheque and truncated cheque .(1) The provisions of this Act, for the time being in force, shall apply to, or in relation to, electronic cheques and the truncated cheques subject to such modifications and amendments as may be necessary for carrying out the purposes of the Negotiable Instruments Act, 1881 (26 of 1881) by the Central Government, in consultation with the Reserve Bank of India, by notification in the Official Gazette. (2) Every notification made by the Central Government under sub -section ( 1) shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the notification or both Houses agree that the notification should not be made, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything pr eviously done under that notification. Explanation. For the purposes of this Act, the expressions electronic cheque and truncated cheque shall have the same meaning as assigned to them in section 6 of the Negotiable Instruments Act, 1881 (26 of 1881).] 4[82. Controller, Deputy Controller and Assistant Controller to be public servants .The Controller, the Deputy Controller and the Assistant Controllers shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860) .] 83. Power to give directions .The Central Government may give directions to any State Government as to the carrying into execution in the State of any of the provisions of this Act or of any rule, regulation or order made thereunder. 84. Protection of action taken in good faith .No suit, prosecution or other legal proceeding shall lie against the Central Government, the State Government, the Controller or any pers on acting on behalf of him, 5[and adjudicating officers ] for anything which i s in good faith done or intended to b e done in pursuance of this Act or any rule, regulation or order made thereunder. 1. Subs. by Act 10 of 2009, s. 41, for Deputy Superintendent of Police (w.e.f. 27 -10-2009). 2. Ins. by s. 42 , ibid. (w.e.f. 27 -10-2009 ). 3. Ins. by Act 55 of 2002, s. 13 ( w.e.f. 26 -2-2003 ). 4. Subs. by 7 of 2017, s. 169 , for section 82 (w.e.f. 26 -5-2017) 5. Subs. by s. 169, ibid., for the Chairperson Members, adjudicating officers and the staff of the Cyber Appellate Tribunal (w.e.f. 26 -5-2017). 32 1[84A. Modes or methods for encryption .The Central Government may, for secure use of the electronic medium and for promotion of e-governance and e -commerce, prescribe the modes or methods for encryption. 84B. Punishment for abetment of offences .Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Act for the punishment of such abetment, be punished with the punishment provided for the offence under this Act. Explanation. An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment. 84C. Punishment for attempt to commit offences .Whoever attempts to commit an offence punishable by this Act or causes such an offence to be committed, and in such an attempt does any act towards the commission of the offence, shall, where no express provision is made for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one -half of the long est term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.] 85. Offences by companies .(1) Where a person committing a contravention of any of the provisions of this Act or of any rule, direction or order made thereunder is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of business of the company as well as the company, shall be guilty of the contravention and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub -section shall render any such person liable to punishment if he proves that the contravention took place without his knowledge or that he exe rcised all due diligence to prevent such contravention. (2) Notwithstanding anything contained in sub -section ( 1), where a contravention of any of the provisions of this Act or of any rule, direction or order made thereunder has been committed by a company and it is proved that the contravention has taken place with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other offic er shall also be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly. Explanation. For the purposes of this section, (i) company means any body corporate and includes a firm or other association of individuals; and (ii) director , in relation to a fir m, means a partner in the firm. 86. Removal of difficulties .(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for removing the difficulty: Provided that no order shall be made under this section after the expiry of a period of two ye ars from the commencement of this Act. (2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament. 87. Power of Central Government to make rules .(1) The Central Government may, by notificatio n in the Official Gazette and in the Electronic Gazette, make rules to carry out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely: 2[(a) the conditions for considering reliability of electronic signature or electronic authentication technique under sub -section ( 2) of section 3A; 1. Ins. by 10 of 2009, s. 45 (w.e.f. 27 -10-2009 ). 2. Subs. by s. 46, ibid., for clause ( a) (w.e.f. 27 -10-2009). 33 (aa) the procedure for ascertaining electronic signature or authentication under sub -section ( 3) of section 3A; (ab) the manner in which any information or matter may be authenticated by means of electronic signature under section 5;] (b) the electronic form in which filing, issue, grant or payment shall be effected under sub -section (1) of section 6; (c) the manner and format in which electronic records shall be filed, or issued and the method of payment under sub -section ( 2) of section 6; 1[(ca) the manner in which the authorised service provider may collect, retain and appropriate service charges un der sub -section ( 2) of section 6A;] (d) the matters relating to the type of 2[electronic signature], manner and format in which it may be affixed under section 10; 3[(e) the manner of storing and affixing electronic signature creation data under section 15 ; (ea) the security procedures and practices under section 16;] (f) the qualifications, experience and terms and conditions of service of Con troller, Deputy Controllers 4[, Assistant Controllers, other officers and employees] under section 17; 5* * * * * (h) the requirements which an applicant must fulfil under sub -section ( 2) of section 21; (i) the period of validity of licence granted under clause ( a) of sub -section ( 3) of section 21; (j) the form in which an application for licence may be made und er sub -section ( 1) of section 22; (k) the amount of fees payable under clause ( c) of sub -section ( 2) of section 22; (l) such other documents which shall accompany an application for licence under clause ( d) of sub - section ( 2) of section 22; (m) the form and the fee for renewal of a licence and the fee payable thereof under section 23; 6[(ma) the form of application and fee for issue of Electronic Signature Certificate under section 35 ;] (n) the form in which application for is sue of a 2[electronic signature] Certificate may be made under sub -section ( 1) of section 35; (o) the fee to be paid to the Cert ifying Authority for issue of a 2[electronic signature] Certificate under sub -section ( 2) of section 35; 1[(oa) the duties of subscribers under sectio n 40A; (ob) the reasonable security practices and procedures and sensitive personal data or information under section 43A;] (p) the manner in which the adjudicating officer shall hold inquiry under sub -section ( 1) of section 46; (q) the qualification and experience which the adjudicating officer shall possess under sub -section (3) of section 46; 7* * * * (u) the form in which appeal may be filed and the fee thereof under sub -section ( 3) of section 57; 1. Ins. by Act 10 of 2009 , s. 46 (w.e.f. 27 -10-2009 ). 2. Subs. by s. 5, ibid., for digital signature (w.e.f. 27 -10-2009). 3. Subs. by s. 46, ibid., for clause ( e) (w.e.f. 27 -10-2009). 4. Subs. by s. 46 , ibid., for and Assistant Controllers (w.e.f. 27 -10-2009). 5. Clause ( g) omitted by s. 46, ibid. (w.e.f. 27 -10-2009). 6. Ins. by s. 4 6, ibid. (w.e.f. 27 -10-2009 ). 7. Clauses ( r), (s) and ( t) omitted by Act 7 of 2017, s. 169 (w.e.f. 26 -5-2017). 34 (v) any other power of a civil court required to be prescribed under clause ( g) of sub -section ( 2) of section 58; and 1[(w) the powers and func tions of the Chairperson of the 2[Appellate Tribunal ] under section 52A; (x) the information, duration, manner and form of such information to be retained and preserved under section 67C; (y) the procedures and safeguards for interception, monitoring or decryption under sub -section ( 2) of section 69 ; (z) the procedures and safeguards for blocking for access by the public under sub -section ( 3) of section 69 A; (za) the procedure and safeguards for monitoring and collecting traffic data or information under sub-section ( 3) of section 69B; (zb) the information security practices and procedures for protected system under section 70; (zc) manner of performing functions and duties of the agency under sub -section ( 3) of section 70 A; (zd) the officers and employees under sub -section ( 2) of section 70B; (ze) salaries and allowances and te rms and condit ions of service of the Director General and other officers and employees under sub -section ( 3) of section 70B ; (zf) the manner in which the functions and duties of agency shall be performed under sub-section ( 5) of section 70B; (zg) the guidelines to be observed by the intermediaries under sub -section (2) of section 79; (zh) the modes or methods for encryption under section 84 A.] (3) 3[Every notification made by the Central Government under sub -section (1) of section 70 A and every rule made by it] shall be laid, as soon as may be after it is made
(1) of section 70 A and every rule made by it] shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, be fore the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agre e in making any modification in 4* the rule or both Houses agree that 4* the rule should not be made, 4*** the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that notification or rule. 88. Constitution of Advisory Committee .(1) The Central Government shall, as soon as may be after the commencement of this Act, constitute a Committee called the Cyber Regulations Advisory Committee. (2) The Cyber Regulations Advisory Committee shall consist of a Chairperson and such number of other official and non -official members representing the interests principally affected or having special knowledge of the subject -matter as the C entral Government may deem fit. (3) The Cyber Regulations Advisory Committee shall advise (a) the Central Government either generally as regards any rules or for any other purpose connected with this Act; (b) the Controller in framing the regulations under this Act. (4) There shall be paid to the non -official members of such Committee such trav elling and other allowances as the Central Government may fix. 1. Subs. by Act 10 of 2009, s. 46, for clause ( w) (w.e.f. 27 -10-2009). 2. Subs. by Act 7 of 2017, s. 169, for Cyber Appellate Tribunal(w.e.f. 26-5-2017). 3. Subs. by Act 10 of 2009, s. 46, for certain words, brackets, letter and figures (w.e.f. 27 -10-2009). 4. The words the notification or omitted by s. 46, ibid. (w.e.f. 27 -10-2009). 35 89. Power of Controller to make regulations .(1) The Controller may, after consultation with the Cyber Regulations Advisory Committee and with the previous approval of the Central Government, b y notification in the Official Gazette, make regulations consistent with this Act and the rules made thereunder to carry out the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely: (a) the particulars relating to maintenance of data base containing the disclosure record of every Certifying Authority under clause 1[(n)] of section 18; (b) the conditions and restrictions subject to which the Controller may recognise any foreign Certifying Authority under sub -section ( 1) of section 19; (c) the terms and conditions subject to which a licence may be granted under clause ( c) of sub-section (3) of section 21; (d) other standards to be observed by a Certifying Authority under clause ( d) of section 30; (e) the manner in which the Certifying Authority shall disclose the matters specified in sub-section ( 1) of section 34; (f) the particulars of statement which shall accompany an application under sub -section ( 3) of section 35. (g) the manner by which the subscriber shall communicate the compromise of private key to the Certifying Authority under sub -section ( 2) of section 42. (3) Every regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions , and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the regulation or both Houses agree that the regulation should not be made, the regulation sh all thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that regulation. 90. Power of St ate Government to make rules .(1) The State Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provi de for all or any of the following ma tters, namely: (a) the electronic form in which filing, issue, grant, receipt or payment shall be effected under sub-section ( 1) of section 6; (b) for matters specified in sub -section ( 2) of section 6; 2* * * * * (3) Every rule made by the State Government under this section shall be laid, as soon as may be after it is made, before each House of the Sta te Legislature where it consists of two Houses, or where such Legislature consists of one House, before that Hou se. 91. [Amendment of Act 45 of 1860 .] Omitted by the Information Technology (Amendment ) Act, 2008 (10 of 2009) , s. 48 (w.e.f. 27-10-2009). 92. [Amendment of Act 1 of 1872 .] Omitted by s. 48, ibid. (w.e.f. 27-10-2009). 93. [Amendment of Act 18 of 1891 .] Omitted by s. 48, ibid. (w.e.f. 27-10-2009). 94. [Amendment of Act 2 of 1934 .] Omitted by s. 48, ibid. (w.e.f. 27-10-2009). 1. Subs. by notification No. S.O. 1015(E), for ( m) (w.e.f. 19-9-2002 ). 2. Clause ( c) omitted by Act 10 of 2009, s. 47 (w.e.f. 27 -10-2009). 36 1[THE FIRST SCHEDULE [See sub-section ( 4) of section 1] DOCUMENTS OR TRANSACTIONS TO WHICH THE ACT SHALL NOT APPLY Sl. No . Description of documents or transactions 1. A negotiable instrument (other than a cheque) as defined in section 13 of the Negotiable Instrument s Act, 1881 (26 of 1881). 2. A power -of-attorney as defined in section 1A of the Powers -of-Attorney Act, 1882 (7 of 1882). 3. A trust as defined in section 3 of the Indian Trust Act, 1882 (2 of 1882). 4. A will as defined in clause ( h) of section 2 of the Indian Succession Act, 1925 (39 of 1925), including any other testamentary disposition by whatever name called. 5. Any contract for the sale or conveyance of immovable property or any interest in such property. ______________ THE SECOND SCHEDULE [See sub-section ( 1) of section 3A] ELECTRONIC SIGNATURE OR ELECTRONIC AUTHENTICATION TECHNIQUE AND PROCEDURE Sl. No. Description Procedure (1) (2) (3) .] ________________ [THE THIRD SCHEDULE. ] Omitted by the Information Technology (Amendment ) Act, 2008 (10 of 2009) , s. 50 (w.e.f. 27-10-2009). [THE FOURTH SCHEDULE .] Omitted by s. 50, ibid. (w.e.f. 27-10-2009). 1. Subs. by Act 10 of 2009, s. 49, for the First Schedule and the Second Schedule (w.e.f. 27 -10-2009).
THE RIGHT TO FAIR COMPENSATION AN D TRANSPARENCY IN LAND ACQUISITION, REHABILITATION AND RESETTLEMENT ACT, 2013 ACT No. 30 OF 2013 [26th September, 2013.] An Act to ensure, in consultation with institutions of local self -government and Gram Sabhas established under the Constitution, a huma ne, participative, informed and transparent process for land acquisition for industrialisation, development of essential infrastructural facilities and urbanisation with the least disturbance to the owners of the land and other affected families and provid e just and fair compensation to the affected families whose land has been acquired or proposed to be acquired or are affected by such acquisition and make adequate provisions for such affected persons for their rehabilitation and resettlement and for ensur ing that the cumulative outcome of compulsory acquisition should be that affected persons become partners in development leading to an improvement in their post acquisition social and economic status and for matters connected therewith or incidental theret o. BE it enacted by Parliament in the Sixty -fourth Year of the Republic of India as follows: CHAPTER I PRELIMINARY 1. Short title, extent and commencement. (1) This Act may be called the Right to Fair Compensation and Transparency in Land Acquisition, Reh abilitation and Resettlement Act, 2013. (2)It extends to the whole of India 1***. (3) It shall come into force on such date2 as the Central Government may, by notification in the Official Gazette, appoint: Provided that the Central Government shall appoint such date within three months from the date on which the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Bill, 2013 receives the assent of the President. 2. Application of Act. (1) The provisions of this Ac t relating to land acquisition, compensation, rehabilitation and resettlement, shall apply, when the appropriate Government acquires land for its own use, hold and control, including for Public Sector Undertakings and for public purpose, and shall include the following purposes, namely: (a) for strategic purposes relating to naval, military, air force, and armed forces of the Union, including central paramilitary forces or any work vital to national security or defence of India or State police, safety of t he people; or (b) for infrastructure projects, which includes the following, namely: (i) all activities or items listed in the notification of the Government of India in the Department of Economic Affairs (Infrastructure Section) number 13/6/2009 -INF, dat ed the 27th March, 2012, excluding private hospitals, private educational institutions and private hotels; (ii) projects involving agro -processing, supply of inputs to agriculture, warehousing, cold storage facilities, marketing infrastructure for agricult ure and allied activities such as dairy, fisheries, and meat processing, set up or owned by the appropriate Government or by a 1. The word except the State of Jammu and Kashmir omitted by Act 34 of 2019, s. 95, and the Fifth Schedule (w.e.f. 31 -10- 2019). 2. 1st January 2014, v ide notification No. 3729(E), dated 19th December, 2013, see Gazette of India, Ex traordinary, Part II, sec. 3( ii). 7 farmers cooperative or by an institution set up under a statute; (iii) project for industrial corridors or mining activities, na tional investment and manufacturing zones, as designated in the National Manufacturing Policy; (iv) project for water harvesting and water conservation structures, sanitation; (v) project for Government administered, Government aided educational and resear ch schemes or institutions; (vi) project for sports, health care, tourism, transportation or space programme; (vii) any infrastructure facility as may be notified in this regard by the Central Government and after tabling of such notification in Parliament ; (c) project for project affected families; (d) project for housing for such income groups, as may be specified from time to time by the appropriate Government; (e) project for planned development or the improvement of village sites or any site in the urb an areas or provision of land for residential purposes for the weaker sections in rural and urban areas; (f) project for residential purposes to the poor or landless or to persons residing in areas affected by natural calamities, or to persons displaced or affected by reason of the implementation of any scheme undertaken by the Government, any local authority or a corporation owned or controlled by the State. (2) The provisions of this Act relating to land acquisition, consent, compensation, rehabilitation and resettlement, shall also apply, when the appropriate Government acquires land for the following purposes, namely: (a) for public private partnership projects, where the ownership of the land continues to vest with the Government, for public purpose as defined in sub -section (1); (b) for private companies for public purpose, as defined in sub -section (1): Provided that in the case of acquisition for (i) private companies, the prior consent of at least eighty per cent, of those affected families, as def ined in sub -clauses (i) and (v) of clause (c) of section 3; and (ii) public private partnership projects, the prior consent of at least seventy per cent. of those affected families, as defined in sub -clauses (i) and (v) of clause (c) of section 3, shall be obtained through a process as may be prescribed by the appropriate Government: Provided further that the process of obtaining the consent shall be carried out along with the Social Impact Assessment study referred to in section 4: Provided also that no la nd shall be transferred by way of acquisition, in the Scheduled Areas in contravention of any law (including any order or judgment of a court which has become final) relating to land transfer, prevailing in such Scheduled Areas. (3) The provisions relating to rehabilitation and resettlement under this Act shall apply in the cases where, (a) a private company purchases land, equal to or more than such limits in rural areas or urban areas, as may be prescribed by the appropriate Government, through private n egotiations with the owner of the land in accordance with the provisions of section 46; (b) a private company requests the appropriate Government for acquisition of a part of an area so prescribed for a public purpose: Provided that where a private company requests the appropriate Government for partial acquisition of land for public purpose, then, the rehabilitation and resettlement entitlements under 8 the Second Schedule shall be applicable for the entire area which includes the land purchased by the priva te company and acquired by the Government for the project as a whole. STATE AMENDMENTS Andhra Pradesh In section 2, of sub -section ( 2), after the second proviso, the following proviso shall be added, namely: - Provided also that the acquisition of land for the projects listed in section 10A and the purposes specified therein shall be exempted from the provisions of the first proviso to this sub-section . [Vide Andhra Pradesh Act 22 of 2018, sec. 2 (w.e.f. 1 -1-2014).] Maharashtra In section 2 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013), in its application to the State of Maharashtra (hereinafter referred to as the principal Act ), in sub -section (2), after th e second proviso, the following proviso shall be added, namely: - Provided also that, the acquisition of land for the projects listed in section 10A and the purposes specified therein, shall be exempted from the provisions of the first proviso to this sub - section. [Vide Maharashtra Act 37 of 2018, sec. 2 (w.e.f. 26-4-2018) .] 3. Definition. In this Act, unless the context otherwise requires, (a) Administrator means an officer appointed for the purpose of rehabilitation and resettlement of affected fami lies under sub -section (1) of section 43; (b) affected area means such area as may be notified by the appropriate Government for the purposes of land acquisition; (c) affected family includes (i) a family whose land or other immovable property has bee n acquired; (ii) a family which does not own any land but a member or members of such family may be agricultural labourers, tenants including any form of tenancy or holding of usufruct right, share -croppers or artisans or who may be working in the affected area for three years prior to the acquisition of the land, whose primary source of livelihood stand affected by the acquisition of land; (iii) the Scheduled Tribes and other traditional forest dwellers who have lost any of their forest rights recognised u nder the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (2 of 2007) due to acquisition of land; (iv) family whose primary source of livelihood for three years prior to the acquisition of the land is dependen t on forests or water bodies and includes gatherers of forest produce, hunters, fisher folk and boatmen and such livelihood is affected due to acquisition of land; (v) a member of the family who has been assigned land by the State Government or the Central Government under any of its schemes and such land is under acquisition; (vi) a family residing on any land in the urban areas for preceding three years or more prior to the acquisition of the land or whose primary source of livelihood for three years prio r to the acquisition of the land is affected by the acquisition of such land; (d) agricultural land means land used for the purpose of (i) agriculture or horticulture; 9 (ii) dairy farming, poultry farming, pisciculture, sericulture, seed farming breeding of livestock or nursery growing medicinal herbs; (iii) raising of crops, trees, grass or garden produce; and (iv) land used for the grazing of cattle; (e) appropriate Government means, (i) in relation to acquisition of land situated within the territor y of, a State, the State Government; (ii) in relation to acquisition of land situated within a Union territory (except Puducherry), the Central Government; (iii) in relation to acquisition of land situated within the Union territory of Puducherry, the Gove rnment of Union territory of Puducherry; (iv) in relation to acquisition of land for public purpose in more than one State, the Central Government, in consultation with the concerned State Governments or Union territories; and (v) in relation to the acquis ition of land for the purpose of the Union as may be specified by notification, the Central Government: Provided that in respect of a public purpose in a District for an area not exceeding such as may be notified by the appropriate Government, the Collecto r of such District shall be deemed to be the appropriate Government; (f) Authority means the Land Acquisition and Rehabilitation and Resettlement Authority established under section 51; (g) Collector means the Collector of a revenue district, and inclu des a Deputy Commissioner and any officer specially designated by the appropriate Government to perform the functions of a Collector under this Act; (h) Commissioner means the Commissioner for Rehabilitation and Resettlement appointed under sub -section (1) of section 44; (i) cost of acquisition includes (i) amount of compensation which includes solatium, any enhanced compensation ordered by the Land Acquisition and Rehabilitation and Resettlement Authority or the Court and interest payable thereon and any other amount determined as payable to the affected families by such Authority or Court; (ii) demurrage to be paid for damages caused to the land and standing crops in the process of acquisition; (iii) cost of acquisition of land and building for settle ment of displaced or adversely affected families; (iv) cost of development of infrastructure and amenities at the resettlement areas; (v) cost of rehabilitation and resettlement as determined in accordance with the provisions of this Act; (vi) administrati ve cost, (A) for acquisition of land, including both in the project site and out of project area lands, not exceeding such percentage of the cost of compensation as may be specified by the appropriate Government; (B) for rehabilitation and resettlement of the owners of the land and other affected families whose land has been acquired or proposed to be acquired or other families affected by such acquisition; (vii) cost of undertaking Social impact Assessment study; 10 (j) company means (i) a company as de fined in section 3 of the Companies Act, 1956 (1 of 1956) other than a Government company; (ii) a society registered under the Societies Registration Act, 1860 (21 of 1860) or under any corresponding law for the time being in force in a State; (k) displac ed family means any family, who on account of acquisition of land has to be relocated and resettled from the affected area to the resettlement area; (l) entitled to act , in relation to a person, shall be deemed to include the following persons, namely: (i) trustees for other persons beneficially interested with reference to any such case, and that to the same extent as the person beneficially interested could have acted if free from disability; (ii) the guardians of minors and the committees or manager s of lunatics to the same extent as the minors, lunatics or other persons of unsound mind themselves, if free from disability, could have acted: Provided that the provisions of Order XXXII of the First Schedule to the Code of Civil Procedure, 1908 (5 of 19 08) shall, mutatis mutandis , apply in the case of persons interested appearing before a Collector or Authority by a next friend, or by a guardian for the case, in proceedings under this Act; (m) family includes a person, his or her spouse, minor children , minor brothers and minor sisters dependent on him: Provided that widows, divorcees and women deserted by families shall be considered separate families. Explanation .An adult of either gender with or without spouse or children or dependents shall be cons idered as a separate family for the purposes of this Act; (n) holding of land means the total land held by a person as an owner, occupant or tenant or otherwise; (o) infrastructure project shall include any one or more of the items specified in clause (b) of sub-section (1) of section
o) infrastructure project shall include any one or more of the items specified in clause (b) of sub-section (1) of section 2; (p) land includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth; (q) landless means such persons or class of persons who may be, (i) consi dered or specified as such under any State law for the time being in force; or (ii) in a case of landless not being specified under sub -clause (i), as may be specified by the appropriate Government; (r) land owner includes any person, (i) whose name is recorded as the owner of the land or building or part thereof, in the records of the authority concerned; or (ii) any person who is granted forest rights under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2 006 (2 of 2007) or under any other law for the time being in force; or (iii) who is entitled to be granted Patta rights on the land under any law of the State including assigned lands; or (iv) any person who has been declared as such by an order of the cou rt or Authority; 11 (s) local authority includes a town planning authority (by whatever name called) set up under any law for the time being in force, a Panchayat as defined in article 243 and a Municipality as defined in article 243P, of the Constitution; (t) marginal farmer means a cultivator with an un -irrigated land holding up to one hectare or irrigated land holding up to one -half hectare; (u) market value means the value of land determined in accordance with section 26; (v) notification means a n otification published in the Gazette of India or, as the case may be, the Gazette of a State and the expression notify shall be construed accordingly; (w) patta shall have the same meaning as assigned to it in the relevant Central or State Acts or rule s or regulations made thereunder; (x) person interested means (i) all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act; (ii) the Scheduled Tribes and other traditional forest dwellers, who have lost any forest rights recognised under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (2 of 2007); (iii) a person interested in an easement affecting the land; (iv) persons having tenancy rights under the relevant State laws including share -croppers by whatever name they may be called; and (v) any person whose primary source of livelihood is likely to be adversely affected; (y) prescribed means prescribed by rules made under this Act; (z) project means a project for which land is being acquired, irrespective of the number of persons affected; (za) public purpose means the activities specified under sub -section (1) of section 2; (zb) Requiring Body means a company, a body corporate, an institution , or any other organisation or person for whom land is to be acquired by the appropriate Government, and includes the appropriate Government, if the acquisition of land is for such Government either for its own use or for subsequent transfer of such land i s for public purpose to a company, body corporate, an institution, or any other organisation, as the case may be, under lease, licence or through any other mode of transfer of land; (zc) Resettlement Area means an area where the affected families who hav e been displaced as a result of land acquisition are resettled by the appropriate Government; (zd) Scheduled Areas means the Scheduled Areas as defined in section 2 of the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 (40 of 1 996); (ze) small farmer means a cultivator with an un -irrigated land holding up to two hectares or with an irrigated land holding up to one hectare, but more than the holding of a marginal farmer. STATE AMENDMENT Jammu And Kashmir and Ladakh (UT S). Section 3.- In clause ( e): (i) in sub -clause (ii), after except Puducherry , insert and Jammu and Kashmir ; (ii) in sub -clause (iii), after Union territory of Puducherry occurring at both the places, insert and Union territory of Jammu and Kashmir . [Vide the Jammu and Kashmir Reorganization (Adaptation of Central Laws ) Order, 2020, vide notification No. S.O. 1123( E), dated (18 -3-2020). ] 12 CHAPTER II DETERMINATION OF SOCI AL IMPACT AND PUBLIC PURPOSE A.PRELIMINARY INVESTIGATION FOR DETERMINATION OF SOCIAL IMPACT AND PUBLICPURPOSE 4. Preparation of Social Impact Assessment study. (1) Whenever the appropriate Government intends to acquire land for a public purpose, it shall consult the concerned Panchayat, Municipality or Municipal Corporation, as the case may be, at village level or ward level, in the affected area and carry out a Social Impact Assessment study in consultation with them, in such manner and from such date as may be specified by such Government by notification. (2) The notification issued by the appropriate Government for commencement of consultation and of the Social Impact Assessment study under sub -section ( 1) shall be made available in the local language to the Panchayat, Municipality or Municipal Corporation, as the case may be, and in th e offices of the District Collector, the Sub -Divisional Magistrate and the Tehsil, and shall be published in the affected areas, in such manner as may be prescribed, and uploaded on the website of the appropriate Government: Provided that the appropriate G overnment shall ensure that adequate representation has been given to the representatives of Panchayat, Gram Sabha, Municipality or Municipal Corporation, as the case may be, at the stage of carrying out the Social Impact Assessment study: Provided further that the appropriate Government shall ensure the completion of the Social Impact Assessment study within a period of six months from the date of its commencement. (3) The Social Impact Assessment study report referred to in sub -section (1) shall be made available to the public in the manner prescribed under section 6. (4) The Social Impact Assessment study referred to in sub -section (1) shall, amongst other matters, include all the following, namely: (a) assessment as to whether the proposed acquisition s erves public purpose; (b) estimation of affected families and the number of families among them likely to be displaced; (c) extent of lands, public and private, houses, settlements and other common properties likely to be affected by the proposed acquisiti on; (d) whether the extent of land proposed for acquisition is the absolute bare - minimum extent needed for the project; (e) whether land acquisition at an alternate place has been considered and found not feasible; (f) study of social impacts of the proje ct, and the nature and cost of addressing them and the impact of these costs on the overall costs of the project vis-a-vis the benefits of the project: Provided that Environmental Impact Assessment study, if any, shall be carried out simultaneously and sha ll not be contingent upon the completion of the Social Impact Assessment study. (5) While undertaking a Social Impact Assessment study under sub -section (1), the appropriate Government shall, amongst other things, take into consideration the impact that th e project is likely to have on various components such as livelihood of affected families, public and community properties, assets and infrastructure particularly roads, public transport, drainage, sanitation, sources of drinking water, sources of water fo r cattle, community ponds, grazing land, plantations, public utilities such as post offices, fair price shops, food storage godowns, electricity supply, health care facilities, schools and educational or training facilities, anganwadis, children parks, pla ces of worship, land for traditional tribal institutions and burial and cremation grounds. (6) The appropriate Government shall require the authority conducting the Social Impact Assessment study to prepare a Social Impact Management Plan, listing the amel iorative measures 13 required to be undertaken for addressing the impact for a specific component referred to in sub -section (5), and such measures shall not be less than what is provided under a scheme or programme, in operation in that area, of the Central Government or, as the case may be, the State Government, in operation in the affected area. 5. Public hearing for Social Impact Assessment .Whenever a Social Impact Assessment is required to be prepared under section 4, the appropriate Government shall ens ure that a public hearing is held at the affected area, after giving adequate publicity about the date, time and venue for the public hearing, to ascertain the views of the affected families to be recorded and included in the Social Impact Assessment Repor t. 6. Publication of Social Impact Assessment study. (1)The appropriate Government shall ensure that the Social Impact Assessment study report and the Social Impact Management Plan referred to in sub-section (6) of section 4 are prepared and made available in the local language to the Panchayat, Municipality or Municipal Corporation, as the case may be, and the offices of the District Collector, the Sub -Divisional Magistrate and the Tehsil, and shall be published in the affected areas, in such manner as may be prescribed, and uploaded on the website of the appropriate Government. (2) Wherever Environment Impact Assessment is carried out, a copy of the Social Impact Assessment report shall be made available to the Impact Assessment Agency authorised by the Ce ntral Government to carry out environmental impact assessment: Provided that, in respect of irrigation projects where the process of Environment Impact Assessment is required under the provisions of any other law for the time being in force, the provisions of this Act relating to Social Impact Assessment shall not apply. B.APPRAISAL OF SOCIAL IMPACT ASSESSMENT REPORT BY AN EXPERT GROUP 7. Appraisal of Social Impact Assessment report by an Expert Group. (1) The appropriate Government shall ensure that the Social Impact Assessment report is evaluated by an independent multi -disciplinary Expert Group, as may be constituted by it. (2) The Expert Group constituted under sub -section (1) shall include the following, namely: (a) two non -official social scientists ; (b) two representatives of Panchayat, Gram Sabha, Municipality or Municipal Corporation, as the case may be; (c) two experts on rehabilitation; and (d) a technical expert in the subject relating to the project. (3) The appropriate Government may nominate a person from amongst the members of the Expert Group as the Chairperson of the Group. (4) If the Expert Group constituted under sub -section ( 1), is of the opinion that, (a) the project does not serve any public purpose; or (b) the social costs and adver se social impacts of the project outweigh the potential benefits, it shall make a recommendation within two months from the date of its constitution to the effect that the project shall be abandoned forthwith and no further steps to acquire the land will b e initiated in respect of the same: Provided that the grounds for such recommendation shall be recorded in writing by the Expert Group giving the details and reasons for such decision: Provided further that where the appropriate Government, inspite of such recommendations, proceeds with the acquisition, then, it shall ensure that its reasons for doing so are recorded in writing. (5) If the Expert Group constituted under sub -section (1), is of the opinion that, (a) the project will serve any public purpose; and 14 (b) the potential benefits outweigh the social costs and adverse social impacts, it shall make specific recommendations within two months from the date of its constitution whether the extent of land proposed to be acquired is the absolute bare -minimum extent needed for the project and whether there are no other less displacing options available: Provided that the grounds for such recommendation shall be recorded in writing by the Expert Group giving the details and reasons for such decision. (6) The re commendations of the Expert Group referred to in sub -sections ( 4) and (5) shall be made available in the local language to the Panchayat, Municipality or Municipal Corporation, as the case may be, and the offices of the District Collector, the Sub -Division al Magistrate and the Tehsil, and shall be published in the affected areas, in such manner as may be prescribed and uploaded on the website of the appropriate Government. 8. Examination of proposals for land acquisition and Social Impact Assessment report by appropriate Government. (1) The appropriate Government shall ensure that (a) there is a legitimate and bona fide public purpose for the proposed acquisition which necessitates the acquisition of the land identified; (b) the potential benefits and the p ublic purpose referred to in clause (a) shall outweigh the social costs and adverse social impact as determined by the Social Impact Assessment that has been carried out; (c) only the minimum area of land required for the project is proposed to be acquired ; (d) there is no unutilised land which has been previously acquired in the area; (e) the land, if any, acquired earlier and remained unutilised, is used for such public purpose and make recommendations in respect thereof. (2) The appropriate Government sh all examine the report of the Collector, if any, and the report of the Expert Group on the Social Impact Assessment study and after considering all the reports, recommend such area for acquisition which would ensure minimum displacement of people, minimum disturbance to the infrastructure, ecology and minimum adverse impact on the individuals affected. (3) The decision of the appropriate Government shall be made available in the local language to the Panchayat, Municipality or Municipal Corporation, as the case may be, and the offices of the District Collector, the Sub -Divisional Magistrate and the Tehsil, and shall be published in the affected areas, in such manner as may be prescribed, and uploaded on the website of the appropriate Government: Provided tha t where land is sought to be acquired for the purposes as specified in sub -section (2) of section 2, the appropriate Government shall also ascertain as to whether the prior consent of the affected families as required under the proviso to sub -section (2) of section 2, has been obtained in the manner as may be prescribed. 9. Exemption from Social Impact Assessment. Where land is proposed to be acquired invoking the urgency provisions under section 40, the appropriate Government may exempt undertaking of the Social Impact Assessment study. CHAPTER III SPECIAL PROVISION TO SAFEGUARD FOOD SECUR ITY 10. Special provision to safeguard food security. (1) Save as otherwise provided in sub -section (2), no irrigated multi -cropped land shall be acquired under this Act. (2) Such land may be acquired subject to the condition that it is being done under exceptional circumstances, as a demonstra
(2) Such land may be acquired subject to the condition that it is being done under exceptional circumstances, as a demonstrable last resort, where the acquisition of the land referred to in sub - section (1) shall, in aggregate for all projects in a distric t or State, in no case exceed such limits as may be notified by the appropriate Government considering the relevant State specific factors and circumstances. (3) Whenever multi -crop irrigated land is acquired under sub -section (2), an equivalent area of 15 culturable wasteland shall be developed for agricultural purposes or an amount equivalent to the value of the land acquired shall be deposited with the appropriate Government for investment in agriculture for enhancing food -security. (4) In a case not fallin g under sub -section (1), the acquisition of the agricultural land in aggregate for all projects in a district or State, shall in no case exceed such limits of the total net sown area of that district or State, as may be notified by the appropriate Governme nt: Provided that the provisions of this section shall not apply in the case of projects that are linear in nature such as those relating to railways, highways, major district roads, irrigation canals, power lines and the like. STATE AMENDMENTS Andhra Prad esh After Chapter III, the following Chapter shall be inserted, namely: - CHAPTER III A PROVISIONS OF CHAPTER II AND CHAPTER HI NOT TO APPLY TO CERTAIN PROJECTS 10A. Power of State Government to exempt certain projects: The State Government may, in the public interest, by notification in the Andhra Pradesh Gazette, exempt any of the following projects from the application of the provisions of Chapter II and Chapter III of this Act, namely: - (a) such projects vital to national security or defence of India a nd every part thereof, including preparation for defence or defence production. (b) rural infrastructure including electrification; (c) affordable housing and housing for the poor people; (d) industrial corridors set up by the State Government and its unde rtakings (in which case the land shall be acquired up to one kilometer on both sides of designated railway lines or roads for such industrial corridor); and (e) infrastructure projects, including projects under public -private partnership where the ownershi p of the land continues to vest with the Government: Provided that the State Government shall, before the issue of notification, ensure the extent of land for the proposed acquisition keeping in view the minimum land required for such project. [Vide Andhr a Pradesh Act 22 of 2018, sec. 3 (w.e.f. 1 -1-2014).] Maharashtra After section 10 of the principal Act, the following section shall be inserted, namely: - 10A. Power of State Government to exempt certain projects The State Government may, in the public int erest, by notification in the Official Gazette, exempt any of the following projects from the application of the provisions of Chapter II and Chapter III of this Act, namely: - (a) such projects vital to national security or defence of India and every part thereof, including preparation for defence or defence production; (b) rural infrastructure including irrigation and electrification; (c) affordable housing and housing for the poor people; (d) industrial area or industrial estate set up by the State Govern ment and its undertaking ; (e) industrial corridor set up by the State Government and its undertaking (in which case the land shall be acquired up to one kilometre on both sides of designated railway line or roads for such industrial corridor); and 16 (f) inf rastructure projects including projects under public -private partnership where the ownership of land continues to vest with the Government: Provided that, the State Government shall, before issue of notification, ensure the extent of land for the proposed acquisition keeping in view the bare minimum land required for such project.] [Vide Maharashtra Act 37 of 2018, sec. 3 (w.e.f. 26-4-2018) .] CHAPTER IV NOTIFICATION AND ACQU ISITION 11. Publication of preliminary notification and power of officers. (1) Whene ver, it appears to the appropriate Government that land in any area is required or likely to be required for any public purpose, a notification (hereinafter referred to as preliminary notification) to that effect along with details of the land to be acquir ed in rural and urban areas shall be published in the following manner, namely: (a) in the Official Gazette; (b) in two daily newspapers circulating in the locality of such area of which one shall be in the regional language; (c) in the local language in the Panchayat, Municipality or Municipal Corporation, as the case may be and in the offices of the District Collector, the Sub -divisional Magistrate and the Tehsil; (d) uploaded on the website of the appropriate Government; (e) in the affected areas, in su ch manner as may be prescribed. (2) Immediately after issuance of the notification under sub -section (1), the concerned Gram Sabha or Sabhas at the village level, municipalities in case of municipal areas and the Autonomous Councils in case of the areas re ferred to in the Sixth Schedule to the Constitution, shall be informed of the contents of the notification issued under the said sub -section in all cases of land acquisition at a meeting called especially for this purpose. (3) The notification issued under sub-section (1) shall also contain a statement on the nature of the public purpose involved, reasons necessitating the displacement of affected persons, summary of the Social Impact Assessment Report and particulars of the Administrator appointed for the purposes of rehabilitation and resettlement under section 43. (4) No person shall make any transaction or cause any transaction of land specified in the preliminary notification or create any encumbrances on such land from the date of publication of such notification till such time as the proceedings under this Chapter are completed: Provided that the Collector may, on the application made by the owner of the land so notified, exempt in special circumstances to be recorded in writing, such owner from the op eration of this sub - section: Provided further that any loss or injury suffered by any person due to his wilful violation of this provision shall not be made up by the Collector. (5) After issuance of notice under sub -section (1), the Collector shall, befor e the issue of a declaration under section 19, undertake and complete the exercise of updating of land records as prescribed within a period of two months. 12. Preliminary survey of land and power of officers to carry out survey. For the purposes of enabli ng the appropriate Government to determine the extent of land to be acquired, it shall be lawful for any officer, either generally or specially authorised by such Government in this behalf, and for his servants and workmen, (a) to enter upon and survey an d take levels of any land in such locality; (b) to dig or bore into the sub -soil; 17 (c) to do all other acts necessary to ascertain whether the land is adapted for such purpose; (d) to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon; and (e) to mark such levels, boundaries and line by placing marks and cutting trenches and where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle: Provided that no act under clauses (a) to (e) in respect of land shall be conducted in the absence of the owner of the land or in the absence of any person authorised in writing by the ow ner: Provided further that the acts specified under the first proviso may be undertaken in the absence of the owner, if the owner has been afforded a reasonable opportunity to be present during the survey, by giving a notice of at least sixty days prior to such survey: Provided also that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling -house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days notice in writing of his intention to do so. 13. Payment for damage. The officer so authorised under section 12 shall at the time of entry under section 12 pay or tender payment for any damage caused, and, in case of dispute as to the sufficiency of the amount s o paid or tendered, he shall at once refer the dispute to the decision of the Collector or other chief revenue officer of the district, and such decision shall be final. 14. Lapse of Social Impact Assessment report. Where a preliminary notification under s ection 11 is not issued within twelve months from the date of appraisal of the Social Impact Assessment report submitted by the Expert Group under section 7, then, such report shall be deemed to have lapsed and a fresh Social Impact Assessment shall be req uired to be undertaken prior to acquisition proceedings under section 11: Provided that the appropriate Government, shall have the power to extend the period of twelve months, if in its opinion circumstances exist justifying the same: Provided further that any such decision to extend the period shall be recorded in writing and the same shall be notified and be uploaded on the website of the authority concerned. 15. Hearing of objections. (1) Any person interested in any land which has been notified under sub-section (1) of section 11, as being required or likely to be required for a public purpose, may within sixty days from the date of the publication of the preliminary notification, object to (a) the area and suitability of land proposed to be acquired; (b) justification offered for public purpose; (c) the findings of the Social Impact Assessment report. (2) Every objection under sub -section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being hea rd in person or by any person authorised by him in this behalf or by an Advocate and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under sub -section (1) of section 11, or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him a long with a separate report giving therein the approximate cost of land acquisition, particulars as to the number of affected families likely to be resettled, for the decision of that Government. (3) The decision of the appropriate Government on the object ions made under sub -section (2) shall be final. 16. Preparation of Rehabilitation and Resettlement Scheme by the Administrator. (1) Upon the publication of the preliminary notification under sub -section (1) of section 11 by the Collector, the Administrato r for Rehabilitation and Resettlement shall conduct a survey and undertake a census of the affected families, in such manner and within such time as may be prescribed, which shall include 18 (a) particulars of lands and immovable properties being acquired of each affected family; (b) livelihoods lost in respect of land losers and landless whose livelihoods are primarily dependent on the lands being acquired; (c) a list of public utilities and Government buildings which are affected or likely to be affected, w here resettlement of affected families is involved; (d) details of the amenities and infrastructural facilities which are affected or likely to be affected, where resettlement of affected families is involved; and (e) details of any common property resourc es being acquired. (2) The Administrator shall, based on the survey and census under sub -section (1), prepare a draft Rehabilitation and Resettlement Scheme, as prescribed which shall include particulars of the rehabilitation and resettlement entitlements of each land owner and landless whose livelihoods are primarily dependent on the lands being acquired and where resettlement of affected families is involved (i) a list of Government buildings to be provided in the Resettlement Area; (ii) details of the p ublic amenities and infrastructural facilities which are to be provided in the Resettlement Area. (3) The draft Rehabilitation and Resettlement scheme referred to in sub -section (2) shall include time limit for implementing Rehabilitation and Resettlement Scheme. (4) The draft Rehabilitation and Resettlement scheme referred to in sub -section (2) shall be made known locally by wide publicity in the affected area and discussed in the concerned Gram Sabhas or Municipalities. (5) A public hearing shall be condu cted in such manner as may be prescribed, after giving adequate publicity about the date, time and venue for the public hearing at the affected area: Provided that in case where an affected area involves more than one Gram Panchayat or Municipality, public hearings shall be conducted in every Gram Sabha and Municipality where more than twenty -five per cent. of land belonging to that Gram Sabha or Municipality is being acquired: Provided further that the consultation with the Gram Sabha in Scheduled Areas sh all be in accordance with the provisions of the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 (40 of 1996). (6) The Administrator shall, on completion of public hearing submit the draft Scheme for Rehabilitation and Resettlement along with a specific report on the claims and objections raised in the public hearing to the Collector. 17. Review of the Rehabilitation and Resettlement Scheme. (1) The Collector shall review the draft Scheme submitted under sub -section (6) of section 1 6 by the Administrator with the Rehabilitation and Resettlement Committee at the project level constituted under section 45. (2) The Collector shall submit the draft Rehabilitation and Resettlement Scheme with his suggestions to the Commissioner Rehabilita tion and Resettlement for approval of the Scheme. 18. Approved Rehabilitation and Resettlement Scheme to be made public. The Commissioner shall cause the approved Rehabilitation and Resettlement Scheme to be made available in the local language to the Panc hayat, Municipality or Municipal Corporation, as the case may be, and the offices of the District Collector, the Sub -Divisional Magistrate and the Tehsil, and shall be published in the affected areas, in such manner as may be prescribed, and uploaded on th e website of the appropriate Government. 19. Publication of declaration and summary of Rehabilitation and Resettlement. (1) When the appropriate Government is satisfied, after considering the report, if any, made under sub -section (2) of section 15, that a ny particular land is needed for a public purpose, a declaration shall be made to that effect, along with a declaration of an area identified as the resettlement area for the purposes of rehabilitation and resettlement of the affected families, under the hand and seal of a Secretary to such 19 Government or of any other officer duly authorised to certify its orders and different declarations may be made from time to time in respect of different parcels of any land covered by the same preliminary notification irrespective of whether one report or different reports has or have been made (wherever
land covered by the same preliminary notification irrespective of whether one report or different reports has or have been made (wherever required). (2) The Collector shall publish a summary of the Rehabilitation and Resettlement Scheme along with declaration referred to in sub -section (1): Provided that no declaration under this sub -section shall be made unless the summary of the Rehabilitation and Resettlement Scheme is published along with such declaration: Provided further that no declaration under this sub -section shall be made unless the Requiring Body deposits an amount, in full or part, as may be prescribed by the appropriate Government toward the cost of acquisition of the land: Provided also that the Requiring Body shall deposit the amount promptly so as to enable the appropriate Government to pu blish the declaration within a period of twelve months from the date of the publication of preliminary notification under section 11. (3) In projects where land is acquired in stages, the application for acquisition itself can specify different stages for the rehabilitation and resettlement, and all declarations shall be made according to the stages so specified. (4) Every declaration referred to in sub -section (1) shall be published in the following manner, namely: (a) in the Official Gazette; (b) in two daily newspapers being circulated in the locality, of such area of which one shall be in the regional language; (c) in the local language in the Panchayat, Municipality or Municipal Corporation, as the case may be, and in the offices of the District Collec tor, the Sub -Divisional Magistrate and the Tehsil; (d) uploaded on the website of the appropriate Government; (e) in the affected areas, in such manner as may be prescribed. (5) Every declaration referred to in sub -section (1) shall indicate, (a) the dist rict or other territorial division in which the land is situated; (b) the purpose for which it is needed, its approximate area; and (c) where a plan shall have been made for the land, the place at which such plan may be inspected without any cost. (6) The declaration referred to in sub -section (1) shall be conclusive evidence that the land is required for a public purpose and, after making such declaration, the appropriate Government may acquire the land in such manner as specified under this Act. (7) Where no declaration is made under sub -section (1) within twelve months from the date of preliminary notification, then such notification shall be deemed to have been rescinded: Provided that in computing the period referred to in this sub -section, any period o r periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded: Provided further that the appropriate Government shall have the power to extend the period of twelve months, if in its opinion circumstances exist justifying the same: Provided also that any such decision to extend the period shall be recorded in writing and the same shall be notified and be uploaded on the website of the authority concerned. 20 20. Land to be marked out, measured and planned including marking of specific areas. The Collector shall thereupon cause the land, unless it has been already marked out under section 12, to be marked out and measured, and if no plan has been made thereof, a plan to be made of the same. 21. Notice to persons interested. (1) The Collector shall publish the public notice on his website and cause public notice to be given at convenient places on or near the land to be taken, stating that the Government intends t o take possession of the land, and that claims to compensations and rehabilitation and resettlement for all interests in such land may be made to him. (2) The public notice referred to in sub -section (1) shall state the particulars of the land so needed, and require all persons interested in the land to appear personally or by agent or advocate before the Collector at a time and place mentioned in the public notice not being less than thirty days and not more than six months after the date of publication of the notice, and to state the nature of their respective interests in the land and the amount and particulars of their claims to compensation for such interests, their claims to rehabilitation and resettlement along with their objections, if any, to the measurements made under section 20. (3) The Collector may in any case require such statement referred to in sub -section (2) to be made in writing and signed by the party or his agent. (4) The Collector shall also serve notice to the same effect on the occupi er, if any, of such land and on all such persons known or believed to be interested therein, be entitled to act for persons so interested, as reside or have agents authorised to receive service on their behalf, within the revenue district in which the land is situated. (5) In case any person so interested resides elsewhere, and has no such agent, the Collector shall ensure that the notice shall be sent to him by post in letter addressed to him at his last known residence, address of place or business and al so publish the same in at least two national daily newspapers and also on his website. 22. Power to require and enforce the making of statements as to names and interests. (1) The Collector may also require any such person to make or deliver to him, at a t ime and place mentioned (such time not being less than thirty days after the date of the requisition), a statement containing, so far as may be practicable, the name of every other person possessing any interest in the land or any part thereof as co -propri etor, sub -proprietor, mortgagee, tenant or otherwise, and of the nature of such interest, and of the rents and profits, if any, received or receivable on account thereof for three years next preceding the date of the statement. (2) Every person required to make or deliver a statement under this section shall be deemed to be legally bound to do so within the meaning of sections 175 and 176 of the Indian Penal Code ( 45 of 1860 ). 23. Enquiry and land acquisition award by Collector. On the day so fixed, or on a ny other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objections (if any) which any person interested has stated pursuant to a notice given under section 21, to the measurements made under section 2 0, and into the value of the land at the date of the publication of the notification, and into the respective interests of the persons claiming the compensation and rehabilitation and resettlement, shall make an award under his hand of (a) the true area o f the land; (b) the compensation as determined under section 27 along with Rehabilitation and Resettlement Award as determined under section 31 and which in his opinion should be allowed for the land; and (c) the apportionment of the said compensation amon g all the persons known or believed to be interested in the land, or whom, or of whose claims, he has information, whether or not they have respectively appeared before him. 21 STATE AMENDMENTS Andhra Pradesh In the Principal Act, after section 23, the follo wing section shall be inserted, namely: - 23A. Award of Col lector without enquiry in case of agreement of interested persons. (1) Notwithstanding anything contained in section 23, if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed, he may, without making further enquiry, make an award according to the terms of such agreemen t. (2) The determination of compensation for any land under sub -section ( 1) shall not in any way affect the determination of compensation in respect of other lands in the same locality or elsewhere in accordance with the other provisions of this Act. (3) Notwithstanding anything contained in the Registration Act, 1908 (Act 16 of 1908), no agreement made under sub -section ( 1) shall be liable to registration under that Act. [Vide Andhra Pradesh Act 22 of 2018, sec. 4 (w.e.f. 1 -1-2014).] Maharashtra After sec tion 23 of the principal Act, the following section shall be inserted, namely: - 23A. Award of Collector without enquiry in case of agreement of interested persons .(1) Notwithstanding anything contained in section 23, if at any stage of the proceedings, t he Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the State Government, he may, without m aking further enquiry, make an award according to the terms of such agreement. (2) The determination of compensation for any land under sub -section (1) shall not in any way affect the determination of compensation in respect of other lands in the same loca lity or elsewhere in accordance with the other provisions of this Act. (3) Notwithstanding anything contained in the Registration Act, 1908 (16 of 1908), no agreement made under sub -section ( 1) shall be liable to registration under that Act. [Vide Maharas htra Act 37 of 2018, sec. 4 (w.e.f. 26 -4-2014).] 24. Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases. (1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, (a) where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or (b) where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed. (2) Notwithstanding anything contained in sub -section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894),where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not be en paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act: 22 Provided that where an award has bee n made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be e ntitled to compensation in accordance with the provisions of this Act. STATE AMENDMENTS Andhra Pradesh In the Principal Act, in section 24, in sub -section ( 2), (1) in the existing proviso, for the expression where an award has been made the expressio n where the said award has been made 5 years or more prior to the commencement of this Act shall be substituted; (2) after the existing proviso, the following proviso shall be added, namely: - Provided further that in computing the period referred to in t his sub -section, any period or periods during which the proceedings for acquisition of the land were held up on account of any order, stay, suspension or injunction issued by any Court or the period specified in the award of a Tribunal for taking possessio n or such period where possession has been taken but the compensation is lying deposited in a Court or in any designated account maintained for this purpose, shall be excluded. [Vide Andhra Pradesh Act 22 of 2018, sec. 5 (w.e.f. 1 -1-2014).] Maharashtra In section 24 of the principal Act, in sub -section ( 2), after the proviso, the following proviso shall be added, namely: - Provided further that, in computing the period referred to in this sub -section, any period or periods during which the proceedings for acquisition of the land were held up on account of any stay or injunction issued by any court or the period specified in the award of a Tribunal for taking possession or such period where possession has been taken but the compensation is lying deposited in a court or in any designated account maintained for this purpose on account of refusal or not coming forward for receiving compensation despite receipt of such notice under sub -section (2) of section 12 of the Land Acquisition Act, 1894 (I of 1894), shall be excluded. Also if the said land is mutated within three years after passing the award in the name of acquiring body, it shall be deemed that the possession of the land has been taken. [Vide Maharashtra Act 37 of 2018, sec. 5 (26-4-2018) .] Haryana In section 24 of the principal Act,- (i) after sub -section ( 1), the following Explanation shall be inserted, namely: - Explanation. -For the purpose of this sub -section, a land acquisition proceeding shall be deemed to have been initiated under the Land Acquisit ion Act, 1894 (Central Act 1 of 1894) where notification under section 4 of the said Act has been published in any form under sub-section ( 1) of the said section. (ii) in sub -section ( 2),- (a) the word physical shall be omitted; 23 (b) for the word or occurring after the words possession of the land has not been taken , the word and shall be substituted; (c) in the proviso, for the sign .existing at the end, the sign : shall be substituted; and (d) after the existing proviso, the following prov iso shall be added at the end, namely: - Provided further that in computing the period referred to in this sub -section, any period during which the proceedings for acquisition of the land were held up on account of any stay or injunction issued by order of any court, shall be excluded: Provided further that the entry in rapat roznamcha regarding taking or handing over possession recorded by the Land Acquisition Officer or Revenue Official shall be treated as possession taken for all intents and purposes. [Vide Haryana Act 21 of 2018, sec. 2 ( 9-5-2018).] 25. Period within which an award shall be made. The Collector shall make an award within a period of twelve months from the date of publication of the declaration under section 19 and if no award is made withi n that period, the entire proceedings for the acquisition of the land shall lapse: Provided that the appropriate Government shall have the power to extend the period of twelve months if in its opinion, circumstances exist justifying the same: Provided furt her that any such decision to extend the period shall be recorded in writing and the same shall
justifying the same: Provided furt her that any such decision to extend the period shall be recorded in writing and the same shall be notified and be uploaded on the website of the authority concerned. 26. Determination of market value of land by Collector. (1) The Collector shall adopt the following criteria in assessing and determining the market value of the land, namely: (a) the market value, if any, specified in the Indian Stamp Act, 1899 (2 of 1899 ) for the registration of sale deeds or agreements to sell, as the case may be, in the a rea, where the land is situated; or (b) the average sale price for similar type of land situated in the nearest village or nearest vicinity area; or (c) consented amount of compensation as agreed upon under sub -section (2) of section 2 in case of acquisiti on of lands for private companies or for public private partnership projects, whichever is higher: Provided that the date for determination of market value shall be the date on which the notification has been issued under section 11. Explanation 1.The ave rage sale price referred to in clause (b) shall be determined taking into account the sale deeds or the agreements to sell registered for similar type of area in the near village or near vicinity area during immediately preceding three years of the year in which such acquisition of land is proposed to be made. Explanation 2.For determining the average sale price referred to in Explanation 1, one -half of the total number of sale deeds or the agreements to sell in which the highest sale price has been mentio ned shall be taken into account. Explanation 3.While determining the market value under this section and the average sale price referred to in Explanation 1 or Explanation 2, any price paid as compensation for land acquired under the provisions of this Ac t on an earlier occasion in the district shall not be taken into consideration. 24 Explanation 4.While determining the market value under this section and the average sale price referred to in Explanation 1 or Explanation 2, any price paid, which in the opi nion of the Collector is not indicative of actual prevailing market value may be discounted for the purposes of calculating market value. (2) The market value calculated as per sub -section (1) shall be multiplied by a factor to be specified in the First Sc hedule. (3) Where the market value under sub -section ( 1) or sub -section ( 2) cannot be determined for the reason that (a) the land is situated in such area where the transactions in land are restricted by or under any other law for the time being in force in that area; or (b) the registered sale deeds or agreements to sell as mentioned in clause (a) of sub-section (1) for similar land are not available for the immediately preceding three years; or (c) the market value has not been speci fied under the Indian Stamp Act, 1899 (2 of 1899) by the appropriate authority, the State Government concerned shall specify the floor price or minimum price per unit area of the said land based on the price calculated in the manner specified in sub -sectio n (1) in respect of similar types of land situated in the immediate adjoining areas: Provided that in a case where the Requiring Body offers its shares to the owners of the lands (whose lands have been acquired) as a part compensation, for acquisition of l and, such shares in no case shall exceed twenty -five per cent, of the value so calculated under sub -section (1) or sub -section (2) or sub -section (3) as the case may be: Provided further that the Requiring Body shall in no case compel any owner of the land (whose land has been acquired) to take its shares, the value of which is deductible in the value of the land calculated under sub -section (1): Provided also that the Collector shall, before initiation of any land acquisition proceedings in any area, take all necessary steps to revise and update the market value of the land on the basis of the prevalent market rate in that area: Provided also that the appropriate Government shall ensure that the market value determined for acquisition of any land or propert y of an educational institution established and administered by a religious or linguistic minority shall be such as would not restrict or abrogate the right to establish and administer educational institutions of their choice. 27. Determination of amount o f compensation. The Collector having determined the market value of the land to be acquired shall calculate the total amount of compensation to be paid to the land owner (whose land has been acquired) by including all assets attached to the land. 28. Param eters to be considered by Collector in determination of award. In determining the amount of compensation to be awarded for land acquired under this Act, the Collector shall take into consideration firstly, the market value as determined under section 26 a nd the award amount in accordance with the First and Second Schedules; 25 secondly, the damage sustained by the person interested, by reason of the taking of any standing crops and trees which may be on the land at the time of the Collector's taking possessio n thereof; thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land; fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings; fifthly, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 19 and the time of the Collector's taking possession of the land; and seventhly, any other ground which may be in the interest of equity, justice and beneficial to the affected families. 29. Determin ation of value of things attached to land or building .(1) The Collector in determining the market value of the building and other immovable property or assets attached to the land or building which are to be acquired, use the services of a competent engin eer or any other specialist in the relevant field, as may be considered necessary by him. (2) The Collector for the purpose of determining the value of trees and plants attached to the land acquired, use the services of experienced persons in the field of agriculture, forestry, horticulture, sericulture, or any other field, as may be considered necessary by him. (3) The Collector for the purpose of assessing the value of the standing crops damaged during the process of land acquisition, may use the services of experienced persons in the field of agriculture as may be considered necessary by him. 30. Award of solatium .(1) The Collector having determined the total compensation to be paid, shall, to arrive at the final award, impose a Solatium amount equival ent to one hundred per cent. of the compensation amount. Explanation .For the removal of doubts it is hereby declared that solatium amount shall be in addition to the compensation payable to any person whose land has been acquired. (2) The Collector shall issue individual awards detailing the particulars of compensation payable and the details of payment of the compensation as specified in the First Schedule. (3) In addition to the market value of the land provided under section 26, the Collector shall, in every case, award an amount calculated at the rate of twelve per cent. per annum on such market value for the period commencing on and from the date of the publication of the notification of the Social Impact Assessment study under sub -section (2)of sectio n 4, in respect of such land, till the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. STATE AMENDMENTS Andhra Pradesh In the Principal Act, after Chapter -IV, the following new Chapter IV A shall be in serted, namely: - 26 CHAPTER IV A Voluntary acquisition of land 30A. Acquisition of land by the State Government by entering into agreement. :--(1) Notwithstanding anything contained in the Principal Act, or any other law, whenever it appears to the State Go vernment that the land is needed in any area for any public purpose, the State Government or its Authorized Officer will enter into an agreement with the willing land owner to sell the land in favour of the State for the matters specified therein in a pres cribed form. (2) The State Government or its Authorized Officer shall pass an order in terms of agreement under sub-section ( 1) for acquisition, and the substance of the order shall be notified in the Gazette. On such publication of notification, the titl e, ownership and all interests of the land owner who enters into agreements, shall vest with the State, free from all encumbrances. (3) Notwithstanding anything contained in the Registration Act, 1908 (Act l6 of 1908), no agreement entered under sub -section (1) shall be liable to registration under that Act. (4) If any family, other than the family of the land owner who entered into an agreement, is affected by the acquisition of land under this section, the State Government shall pay a lumpsum amount tow ards rehabilitation and resettlement, if any, as prescribed in the rules framed hereunder: Provided that no agreement or the lumpsum amount towards rehabilitation and resettlement as may be prescribed, shall be abnormally at variance to the disadvantage o f the land owners.] [Vide Andhra Pradesh Act 22 of 2018, sec. 6 (w.e.f. 1 -1-2014).] CHAPTER V REHABILITATION AND RE SETTLEMENT AWARD 31. Rehabilitation and Resettlement Award for affected families by Collector .(1) The Collector shall pass Rehabilitation and Resettlement Awards for each affected family in terms of the entitlements provided in the Second Schedule. (2) The Rehabilitation and Resettlement Award shall include all of the following, namely: (a) rehabilitation and resettlement amount payable to the family; (b) bank account number of the person to which the rehabilitation and resettlement award amount is to be transferred; (c) particulars of house site and house to be allotted, in case of displaced families; (d) particulars of land allotted to the displaced families; (e) particulars of one time subsistence allowance and transportation allowance in case of displaced families; (f) particulars of payment for cattle shed and petty shops; (g) particulars of one -time amount to artisans and small traders; (h)d etails of mandatory employment to be provided to the members of the affected families; (i) particulars of any fishing rights that may be involved; (j) particulars of annuity and other entitlements to be provided; (k) particulars of special provisions for the Scheduled Castes and the Scheduled Tribes to be provided: 27 Provided that in case any of the matters specified under clauses (a) to (k) are not applicable to any affected family the same shall be indicated as not applicable : Provided further that the appropriate Government may, by notification increase the rate of rehabilitation and resettlement amount payable to the affected families, taking into account the rise in the price index. STATE AMENDMENTS Andhra Pradesh In the Principal Act, after se ction 31, the following section shall be inserted, namely: - 31A. Payment of Lump sum amount by State Government: Notwithsta nding anyth ing contained in this Act, when ever the land is to be acquired for any projects as notified in section 10A, it shall be competent for the state Government to pay such lumpsum about as may be prescribed in the rules in lieu of Rehab ilitation. Provided that the payment of such lumpsum amount in lieu of Rehabilitation and Resettlement as may be prescribed, shall not be abno rmally at variance to the disadvantage of the affected families. [Vide Andhra Pradesh Act 22 of 2018, sec. 7 (w.e.f. 1 -1-2014).] Maharashtra After section 31 of the principal Act, the following section shall be inserted, namely: - 31A. Payment of lump sum amount by State Government for its linear nature projects. Notwithstanding anything contained in this Act, it shall be competent for the State Government to pay, whenever the land is to be acquired for its own use amounting to less than one hundred acres or whenever the land is to be acquired in case of projects which are linear in nature as referred to the proviso to sub -section (4) of section 10, as Rehabilitation and Resettlement cost, such lump sum amount equal to fifty per cent. of the amount of compe nsation as determined under section 27 to the affected families. [Vide Maharashtra Act 37 of 2018, sec. 6 (26-4-2018) .] 32. Provision of infrastructural amenities in resettlement area. In every resettlement area as defined under this Act, the Collector sh all ensure the provision of all infrastructural facilities and basic minimum amenities specified in the Third Schedule. 33. Corrections to awards by Collector. (1) The Collector may at any time, but not later than six months from the date of award or where he has been required under the provisions of this Act to make a reference to the Authority under section 64, before the making of such reference, by order, correct any clerical or arithmetical mistakes in either of the awards or errors arising therein eit her on his own motion or on the application of any person interested or local authority: Provided that no correction which is likely to affect prejudicially any person shall be made unless such person has been given a reasonable opportunity of making repre sentation in the matter. (2) The Collector shall give immediate notice of any correction made in the award so corrected to all the persons interested. (3) Where any excess amount is proved to have been paid to any person as a result of the correction made under sub -section (1), the excess amount so paid shall be liable to be refunded and in the case of any default or refusal to pay, the same may be recovered, as prescribed by the appropriate Government. STATE AMENDMENTS Andhra Pradesh In the principal Act, after section 33, the following new section 33 A shall be inserted, namely: - 28 33A. Recovery of the amount wrongfully paid. Notwithstanding anything contained in any other law, the authority in a reference under section 64 or the High Court in appeal under section 74, or any other authority in any legal proceedings find that
a reference under section 64 or the High Court in appeal under section 74, or any other authority in any legal proceedings find that the money has been wrongfully paid to any person under this Act, the State Government or its authorized person or Collector shall recover the same as arrears of land revenue. [Vide Andh ra Pradesh Act 22 of 2018, sec. 8 (w.e.f. 1 -1-2014).] 34. Adjournment of enquiry. The Collector may, for any cause he thinks fit, from time to time adjourn the enquiry to a day to be fixed by him. 35. Power to summon and enforce attendance of witnesses and production of documents. For the purpose of enquiries under this Act, the Collector shall have powers to summon and enforce the attendance of witnesses, including the parties interested of any of them, and to compel the production of documents by the same means, and (so far as may be) in the same manner as is provided in the case of a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908). 36. Power to call for records, etc. The appropriate Government may at any time before the award is made by th e Collector under section 30 call for any record of any proceedings (whether by way of inquiry or otherwise) for the purpose of satisfying itself as to the legality or propriety of any findings or order passed or as to the regularity of such proceedings an d may pass such order or issue such direction in relation thereto as it may think fit: Provided that the appropriate Government shall not pass or issue any order or direction prejudicial to any person without affording such person a reasonable opportunity of being heard. 37. Awards of Collector when to be final. (1) The Awards shall be filed in the Collectors office and shall, except as hereinafter provided, be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the true area and market value of the land and the assets attached thereto, solatium so determined and the apportionment of the compensation among the persons interested. (2) The Collector shall g ive immediate notice of his awards to such of the persons interested who are not present personally or through their representatives when the awards are made. (3) The Collector shall keep open to the public and display a summary of the entire proceedings undertaken in a case of acquisition of land including the amount of compensation awarded to each individual along with details of the land finally acquired under this Act on the website created for this purpose. 38. Power to take possession of land to be ac quired. (1) The Collector shall take possession of land after ensuring that full payment of compensation as well as rehabilitation and resettlement entitlements are paid or tendered to the entitled persons within a period of three months for the compensati on and a period of six months for the monetary part of rehabilitation and resettlement entitlements listed in the Second Schedule commencing from the date of the award made under section 30: Provided that the components of the Rehabilitation and Reset tlement Package in the Second and Third Schedules that relate to infrastructural entitlements shall be provided within a period of eighteen months from the date of the award: Provided further that in case of acquisition of land for irrigation or hydel proj ect, being a public purpose, the rehabilitation and resettlement shall be completed six months prior to submergence of the lands acquired. (2) The Collector shall be responsible for ensuring that the rehabilitation and resettlement process is completed in all its aspects before displacing the affected families. 39. Additional compensation in case of multiple displacements. The Collector shall, as far as possible, not displace any family which has already been displaced by the appropriate Government for the purpose of acquisition under the provisions of this Act, and if so displaced, shall pay an additional 29 compensation equivalent to that of the compensation determined under this Act for the second or successive displacements. 40. Special powers in case of ur gency to acquire land in certain cases. (1) In cases of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of thirty days from the publication of the notice mentioned in sectio n 21, take possession of any land needed for a public purpose and such land shall thereupon vest absolutely in the Government, free from all encumbrances. (2) The powers of the appropriate Government under sub -section (1) shall be restricted to the minimum area required for the defence of India or national security or for any emergencies arising out of natural calamities or any other emergency with the approval of Parliament: Provided that the Collector shall not take possession of any building or part of a building under this sub -section without giving to the occupier thereof at least forty -eight hours notice of his intention to do so, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such buil ding without unnecessary inconvenience. (3) Before taking possession of any land under sub -section (1) or sub -section (2), the Collector shall tender payment of eighty per cent. of the compensation for such land as estimated by him to the person interested entitled thereto. (4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub -section (1), sub -section (2) or sub -section (3) are applicable, the appropriate Government may direct that any or all of the provis ions of Chapter II to Chapter VI shall not apply, and, if it does so direct, a declaration may be made under section 19 in respect of the land at any time after the date of the publication of the preliminary notification under sub -section (1) of section 11 . (5) An additional compensation of seventy -five per cent. of the total compensation as determined under section 27, shall be paid by the Collector in respect of land and property for acquisition of which proceedings have been initiated under sub -section (1) of this section: Provided that no additional compensation will be required to be paid in case the project is one that affects the sovereignty and integrity of India, the security and strategic interests of the State or relations with foreign States. STA TE AMENDMENTS Maharashtra In section 40 of the principal Act, in sub -section (2), after the words approval of Parliament , the words or to comply with the directions given by the Central Government to the State Government shall be added. [Vide Maharas htra Act 37 of 2018, sec. 7 (w.e.f. 26.4.2018) .] 41. Special provisions for Scheduled Castes and Scheduled Tribes. (1) As far as possible, no acquisition of land shall be made in the Scheduled Areas. (2) Where such acquisition does take place it shall be d one only as a demonstrable last resort. (3) In case of acquisition or alienation of any land in the Scheduled Areas, the prior consent of the concerned Gram Sabha or the Panchayats or the autonomous District Councils, at the appropriate level in Scheduled Areas under the Fifth Schedule to the Constitution, as the case may be, shall be obtained, in all cases of land acquisition in such areas, including acquisition in case of urgency, before issue of a notification under this Act, or any other Central Act or a State Act for the time being in force: Provided that the consent of the Panchayats or the Autonomous Districts Councils shall be obtained in cases where the Gram Sabha does not exist or has not been constituted. (4) In case of a project involving land ac quisition on behalf of a Requiring Body which involves involuntary displacement of the Scheduled Castes or the Scheduled Tribes families, a Development Plan shall be prepared, in such form as may be prescribed, laying down the details of procedure for settling land rights due, but not settled and restoring titles of the Scheduled Tribes as well as the 30 Scheduled Castes on the alienated land by undertaking a special drive together with land acquisition. (5) The Development Plan shall also contain a programme for development of alternate fuel, fodder and non -timber forest produce resources on non -forest lands within a period of five years, sufficient to meet the requirements of tribal communities as well as the Scheduled Castes. (6) In case of land being acquir ed from members of the Scheduled Castes or the Scheduled Tribes, at least one -third of the compensation amount due shall be paid to the affected families initially as first instalment and the rest shall be paid after taking over of the possession of the la nd. (7) The affected families of the Scheduled Tribes shall be resettled preferably in the same Scheduled Area in a compact block so that they can retain their ethnic, linguistic and cultural identity. (8) The resettlement areas predominantly inhabited by the Scheduled Castes and the Scheduled Tribes shall get land, to such extent as may be decided by the appropriate Government free of cost for community and social gatherings. (9) Any alienation of tribal lands or lands belonging to members of the Scheduled Castes in disregard of the laws and regulations for the time being in force shall be treated as null and void, and in the case of acquisition of such lands, the rehabilitation and resettlement benefits shall be made available to the original tribal land o wners or land owners belonging to the Scheduled Castes. (10) The affected Scheduled Tribes, other traditional forest dwellers and the Scheduled Castes having fishing rights in a river or pond or dam in the affected area shall be given fishing rights in the reservoir area of the irrigation or hydel projects. (11) Where the affected families belonging to the Scheduled Castes and the Scheduled Tribes are relocated outside of the district, then, they shall be paid an additional twenty -five per cent. rehabilitat ion and resettlement benefits to which they are entitled in monetary terms along with a one - time entitlement of fifty thousand rupees. 42. Reservation and other benefits. (1) All benefits, including the reservation benefits available to the Scheduled Tribe s and the Scheduled Castes in the affected areas shall continue in the resettlement area. (2) Whenever the affected families belonging to the Scheduled Tribes who are residing in the Scheduled Areas referred to in the Fifth Schedule or the tribal areas ref erred to in the Sixth Schedule to the Constitution are relocated outside those areas, than, all the statutory safeguards, entitlements and benefits being enjoyed by them under this Act shall be extended to the area to which they are resettled regardless of whether the resettlment area is a Scheduled Area referred to in the said Fifth Schedule, or a tribal area referred to in the said Sixth Schedule, or not. (3) Where the community rights have been settled under the provisions of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (2 of 2007), the same shall be quantified in monetary amount and be paid to the individual concerned who has been displaced due to the acquisition of land in proportion with his share in such community rights. CHAPTER VI PROCEDURE AND MANNER OF REHABILITATION AN D RESETTLEMENT 43. Appointment of Administrator. (1) Where the appropriate Government is satisfied that there is likely to be involuntary displacement of persons due to acquisiti on of land, then, the State Government shall, by notification, appoint in respect of that project, an officer not below the rank of Joint Collector or Additional Collector or Deputy Collector or equivalent official of Revenue Department to be the Administr ator for Rehabilitation and Resettlement. (2) The Administrator shall, with a view to enable him to function efficiently and to meet the special time -frame, be provided with such powers, duties and responsibilities as may be prescribed by the appropriate G overnment and provided with office infrastructure and be assisted by such officers and employees who shall be subordinate to him as the appropriate Government may decide. (3) Subject to the superintendence, directions and control of the appropriate Governm ent and the 31 Commissioner for Rehabilitation and Resettlement, the formulation, execution and monitoring of the Rehabilitation and Resettlement Scheme shall vest in the Administrator. 44. Commissioner for rehabilitation and resettlement. (1) The State Gover nment shall appoint an officer of the rank of Commissioner or Secretary of that Government for rehabilitation and resettlement of affected families under this Act, to be called the Commissioner for Rehabilitation and Resettlement. (2) The Commissioner shal l be responsible for supervising the formulation of rehabilitation and resettlement schemes or plans and proper implementation of such schemes or plans. (3) The Commissioner shall be responsible for the post -implementation social audit in consultation with the Gram Sabha in rural areas and municipality in urban areas. 45. Rehabilitation and resettlement committee at project level. (1) Where land proposed to be acquired is equal to or more than one hundred acres, the appropriate Government shall constitute a Committee under the chairmanship of the Collector to be called the Rehabilitation and Resettlement Committee, to monitor and review the progress of implementation of the Rehabilitation and Resettlement scheme and to carry out post -implementation social au dits in consultation with the Gram Sabha in rural areas and municipality in urban areas. (2) The Rehabilitation and Resettlement Committee shall include, apart from officers of the appropriate Government, the following members, namely: (a) a representativ e of women residing in the affected area; (b) a representative each of the Scheduled Castes and the Scheduled Tribes residing in the affected area; (c) a representative of a voluntary organisation working in the area; (d) a representative of a nationalised bank; (e) the Land Acquisition Officer of the project; (f) the Chairpersons of the panchayats or municipalities located in the affected area or their nominees; (g) the Chairperson of the District Planning Committee or his nominee; (h) the Member of Parlia ment and Member of the Legislative Assembly of the concerned area or their nominees; (i) a representative of the Requiring Body; and (j) Administrator for Rehabilitation and Resettlement as the Member -Convenor. (3) The procedure regulating the discharge of the process given in this section and other matters connected thereto of the Rehabilitation and Resettlement Committee shall be such as may be prescribed by the appropriate Government. 46. Provisions relating to rehabilitation and resettlement to apply in case of certain persons other than specified persons. (1) Where any person other than a specified person is purchasing land through private negotiations for an area equal to or more than such limits, as may be notified by the appropriate Government, consi dering the relevant State specific factors and circumstances, for which the payment of Rehabilitation and Resettlement Costs under this Act is required, he shall file an application with the District Collector notifying him of (a) intent to purchase; (b) purpose
he shall file an application with the District Collector notifying him of (a) intent to purchase; (b) purpose for which such purchase is being made; (c) particulars of lands to be purchased. (2) It shall be the duty of the Collector to refer the matter to the Commissioner for the satisfaction of all relevant provisions under this Act related to rehabilita tion and resettlement. 32 (3) Based upon the Rehabilitation and Resettlement Scheme approved by the Commissioner as per the provisions of this Act, the Collector shall pass individual awards covering Rehabilitation and Resettlement entitlements as per the pro visions of this Act. (4) No land use change shall be permitted if rehabilitation and resettlement is not complied with in full. (5) Any purchase of land by a person other than specified persons without complying with the provisions of Rehabilitation and Re settlement Scheme shall be void ab initio : Provided that the appropriate Government may provide for rehabilitation and resettlement provisions on sale or purchase of land in its State and shall also fix the limits or ceiling for the said purpose. (6) If any land has been purchased through private negotiations by a person on or after the 5th day of September, 2011, which is more than such limits referred to in sub -section (1) and, if the same land is acquired within three years from the date of commencement of this Act, then, forty per cent. of the compensation paid for such land acquired shall be shared with the original land owners. Explanation .For the purpose of this section, the expression (a) original land owner refers to the owner of the land as on the 5th day of September, 2011; (b) specified persons includes any person other than (i) appropriate Government; (ii) Government company; (iii) association of persons or trust or society as registered under the Societies Registration Act, 1860 (21 of 18 60), wholly or partially aided by the appropriate Government or controlled by the appropriate Government. STATE AMENDMENTS Andhra Pradesh [In the principal Act, in section 46, in sub -section (6), in the Explanation, in clause (b), the words any person oth er than , shall be omitted.] [Vide Andhra Pradesh Act 22 of 2018, sec. 9 (w.e.f. 1 -1-2014).] Maharashtra In section 46 of the principal Act, in sub -section ( 6), in the Explanation, in clause ( b), sub-clauses ( i) and ( ii) shall be delete d. [Vide Maharashtra Act 37 of 2018, sec. 8 (w.e.f. 26.4.2018) .] Haryana In clause ( b) of Explanation to section 46 of the principal Act, the words any person other than shall be omitted. [Vide Haryana Act 21 of 2018, sec. 3 (w.e.f. 9.5.2018). ] 47. Quantification and deposit of rehabilitation and resettlement amount. Where the Collector is of the view that the obligations of the Requiring Body with regard to rehabilitation and resettlement can be quantified into monetary amount, he shall allow the pa yment of such amount into an account in complete satisfaction of such obligations, which shall be administered by the Administrator appointed under section 43, under the supervision of the Collector. CHAPTER VII NATIONAL MONITORING C OMMITTEE FOR REHABIL ITATION AND RESETTLEMEN T 48. Establishment of National Monitoring Committee for rehabilitation and resettlement. (1) The Central Government may, whenever necessary, for national or inter -State projects, constitute a National Monitoring Committee for reviewing and monitoring the implementation of rehabilitation and resettlement schemes or plans under this Act. (2) The Committee may, besides having representation of the concerned Ministries and Departments of the Central and State Governments, associate with it eminent experts from the relevant fields. 33 (3) The procedures to be followed by the Committee and the allowances payable to the experts shall be such as may be prescribed. (4) The Central Government shall provide officers and other employees to the Committe e necessary for its efficient functioning. 49. Reporting requirements. The States and Union territories shall provide all the relevant information on the matters covered under this Act, to the National Monitoring Committee in a regular and timely manner, a nd also as and when required. 50. Establishment of State Monitoring Committee for rehabilitation and resettlement. (1) The State Government shall constitute a State Monitoring Committee for reviewing and monitoring the implementation of rehabilitation and resettlement schemes or plans under this Act. (2) The Committee may, besides having representatives of the concerned Ministries and Departments of the State Government, associate with it eminent experts from the relevant fields. (3) The procedures to be fo llowed by the Committee and the allowances payable to the experts shall be such as may be prescribed by the State. (4) The State Government shall provide such officers and other employees to the Committee as may be necessary for its efficient functioning. CHAPTER VIII ESTABLISHMENT OF LAND ACQUISITION , REHABILITATION AND RESETTLEMENT AUTHORI TY 51. Establishment of Land Acquisition, Rehabilitation and Resettlement Authority. (1) The appropriate Government shall, for the purpose of providing speedy disposal o f disputes relating to land acquisition, compensation, rehabilitation and resettlement, establish, by notification, one or more Authorities to be known as the Land Acquisition, Rehabilitation and Resettlement Authority to exercise jurisdiction, powers an d authority conferred on it by or under this Act. (2) The appropriate Government shall also specify in the notification referred to in sub -section ( 1) the areas within which the Authority may exercise jurisdiction for entertaining and deciding the referen ces made to it under section 64 or applications made by the applicant under second proviso to sub-section (1) of section 64. 52. Composition of Authority. (1) The Authority shall consist of one person only (hereinafter referred to as the Presiding Officer) to be appointed, by notification, by the appropriate Government. (2) Notwithstanding anything contained in sub -section (1), the appropriate Government may authorise the Presiding Officer of one Authority to discharge also the functions of the Presiding Officer of another Authority. 53. Qualifications for appointment as Presiding Officer. (1) A person shall not be qualified for appointment as the Presiding Officer of an Authority unless, (a) he is or has been a District Judge; or (b) he is a qualified lega l practitioner for not less than seven years. (2) A Presiding Officer shall be appointed by the appropriate Government in consultation with the Chief Justice of a High Court in whose jurisdiction the Authority is proposed to be established. 54. Terms of of fice of Presiding Officer. The Presiding Officer of an Authority shall hold office for a term of three years from the date on which he enters upon his office or until he attains the age of sixty -five years, whichever is earlier. 55. Staff of Authority. (1) The appropriate Government shall provide the Authority with a Registrar and such other officers and employees as that Government may think fit. (2) The Registrar and other officers and employees of an Authority shall discharge their functions under the ge neral superintendence of the Presiding Officer. (3) The salaries and allowances and other conditions of service of the Registrar and other officers 34 and employees of an Authority shall be such as may be prescribed. 56. Salary and allowances and other terms and conditions of service of Presiding Officers. The salary and allowances payable to and the other terms and conditions of service (including pension, gratuity and other retirement benefits) of the Presiding Officer of an Authority, shall be such as may be prescribed: Provided that neither the salary and allowances nor the other terms and conditions of service of the said Presiding Officers shall be varied to their disadvantage after appointment. 57. Filling up of vacancies. If, for any reason other than temporary absence, any vacancy occurs in the office of the Presiding Officer of an Authority then the appropriate Government shall appoint another person in accordance with the provisions of this Act to fill the vacancy and the proceedings may be continued before the Authority from the stage at which the vacancy is filled. 58. Resignation and removal. (1) The Presiding Officer of an Authority may, by notice in writing under his hand addressed to the appropriate Government, resign his office: Provided that t he Presiding Officer shall, unless he is permitted by the appropriate Government to relinquish his office sooner, continue to hold office until the expiry of three months from the date of receipt of such notice or until a person duly appointed as his succe ssor enters upon his office or until the expiry of his term of office, whichever is earlier. (2) The Presiding Officer of an Authority shall not be removed from his office except by an order made by the appropriate Government on the ground of proven misbeh aviour or incapacity after inquiry in the case of the Presiding Officer of an Authority made by a Judge of a High Court in which the Presiding Officer concerned has been informed of the charges against him and given a reasonable opportunity of being heard in respect of these charges. (3) The appropriate Government may, by rules, regulate the procedure for the investigation of misbehaviour or incapacity of the aforesaid Presiding Officer. 59. Orders constituting Authority to be final and not to invalidate it s proceedings. No order of the appropriate Government appointing any person as the Presiding Officer of an Authority shall be called in question in any manner, and no act or proceeding before an Authority shall be called in question in any manner on the gr ound merely of any defect in the constitution of an Authority. 60. Powers of Authority and procedure before it. (1) The Authority shall, for the purposes of its functions under this Act, shall have the same powers as are vested in a civil court under the C ode of Civil Procedure, 1908 (5 of 1908) in respect of the following matters, namely: (a) summoning and enforcing the attendance of any person and examining him on oath; (b) discovery and production of any document or other material object producible as e vidence; (c) receiving evidence on affidavits; (d) requisitioning of any public record; (e) issuing commission for the examination of witnesses; (f) reviewing its decisions, directions and orders; (g) any other matter which may be prescribed. (2) The Autho rity shall have original jurisdiction to adjudicate upon every reference made to it under section 64. (3) The Authority shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by the principles of natural justice and subject to the other provisions of this Act and of any rules made thereunder, the Authority shall have the power to regulate its own procedure. (4) The Authority shall, after receiving reference under section 64 and after giving notice of such reference to all the parties concerned and after affording opportunity of hearing to all parties, dispose 35 of such reference within a period of six months from the date of receipt of such reference and make an award accordingly. (5) The Authority sh all arrange to deliver copies of the award to the parties concerned within a period of fifteen days from the date of such award. 61. Proceedings before Authority to be judicial proceedings. All proceedings before the Authority shall be deemed to be judicia l proceedings within the meaning of sections 193 and 228 of the Indian Penal Code (45 of 1860) and the Authority shall be deemed to be a civil court for the purposes of sections 345 and 346 of the Code of Criminal Procedure, 1973 (2 of 1974). 62. Members a nd officers of Authority to be public servants. The Member and officers of the Authority shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860). 63. Jurisdiction of civil courts barred. No civil court ( other than High Court under article 226 or article 227 of the Constitution or the Supreme Court) shall have jurisdiction to entertain any dispute relating to land acquisition in respect of which the Collector or the Authority is empowered by or under this Act, and no injunction shall be granted by any court in respect of any such matter. 64. Reference to Authority. (1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by th e Collector for the determination of the Authority, as the case may be, whether his objection be to the measurement of the land, the amount of the compensation, the person to whom it is payable, the rights of Rehabilitation and Resettlement under Chapters V and VI or the apportionment of the compensation among the persons interested: Provided that the Collector shall, within a period of thirty days from the date of receipt of application, make a reference to the appropriate Authority: Provided further that where the Collector fails to make such reference within the period so specified, the applicant may apply to the Authority, as the case may be, requesting it to direct the Collector to make the reference to it within a period of thirty days. (2) The applica tion shall state the grounds on which objection to the award is taken: Provided that every such application shall be made (a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collectors award; (b) in other cases, within six weeks of the receipt of the notice from the Collector under section 21, or within six months from the date of the Collectors award, whichever period shall first expire: Provided further th at the Collector may entertain an application after the expiry of the said period, within a further period of one year, if he is satisfied that there was sufficient cause for not filing it within the period specified in the first proviso. 65. Collectors s tatement to Authority. (1) In making the reference, the Collector shall state for the information of the Authority, in writing under his hand (a) the situation and extent of the land, with particulars of any trees, buildings or standing crops thereon; (b) the names of the persons whom he has reason to think interested in such land; (c) the amount awarded for damages and paid or tendered under section 13, and the amount of compensation awarded under the provisions of this Act; (d) the amount paid or deposit ed under any other provisions of this Act; and (e) if the objection be to the amount of the compensation, the grounds on which the amount of comp
this Act; and (e) if the objection be to the amount of the compensation, the grounds on which the amount of compensation was determined. 36 (2) The statement under sub -section (1) shall be attached a schedule giving the partic ulars of the notices served upon, and of the statements in writing made or delivered by the persons interested respectively. 66. Service of notice by Authority. The Authority shall thereupon cause a notice specifying the day on which the Authority will pro ceed to determine the objection, and directing their appearance before the Authority on that day, to be served on the following persons, namely: (a) the applicant; (b) all persons interested in the objection, except such (if any) of them as have consented without protest to receive payment of the compensation awarded; and (c) if the objection is in regard to the area of the land or to the amount of the compensation, the Collector. 67. Restriction on scope of proceedings. The scope of the enquiry in every s uch proceeding shall be restricted to a consideration of the interest of the persons affected by the objection. 68. Proceeding s to be in public. Every such proceeding shall take place in public, and all persons entitled to practice in any Civil Court in th e State shall be entitled to appear, plead and act (as the case may be) in such proceeding. 69. Determination of award by Authority. (1) In determining the amount of compensation to be awarded for land acquired including the Rehabilitation and Resettlemen t entitlements, the Authority shall take into consideration whether the Collector has followed the parameters set out under section 26 to section 30 and the provisions under Chapter V of this Act. (2) In addition to the market value of the land, as above p rovided, the Authority shall in every case award an amount calculated at the rate of twelve per cent. per annum on such market value for the period commencing on and from the date of the publication of the preliminary notification under section 11 in respe ct of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. Explanation .In computing the period referred to in this sub -section, any period or periods during which the proceedings for the a cquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded. (3) In addition to the market value of the land as above provided, the Authority shall in every case award a solatium of one hundred per c ent. over the total compensation amount. 70. Form of award. (1) Every award under this Chapter shall be in writing signed by the Presiding Officer of the Authority, and shall specify the amount awarded under clause first of section 28, and also the amounts (if any) respectively awarded under each of the other clauses of the same sub - section, together with the grounds of awarding each of the said amounts. (2) Every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of clause (2), and clause (9) of respectively, of section 2 of the Code of Civil Procedure, 1908 (5 of 1908). 71. Costs. (1) Every such award shall also state the amount of costs incurred in the proceeding under this Chapter, and by what persons and in what proportions they are to be paid. (2) When the award of the Collector is not upheld, the cost shall ordinarily be paid by the Collector, unless the Authority concerned is of the opinion that the claim of the applicant was so extravagant or that he was so negligent in putting his case before the Collector that some deduction from his costs should be made or that he should pay a part of the Collectors costs. 72. Collector may be directed to pay interest on excess compensation. If the sum, which in the opinion of the Authority concerned, the Collector ought to have awarded as compensation is in excess of the sum which the Collector did award as compensation, the award of the Authority concerned may direct that the Collector shal l pay interest on such excess at the rate of nine per cent. per annum from the date on which he took possession of the land to the date of payment of such excess into Authority: 37 Provided that the award of the Authority concerned may also direct that where such excess or any part thereof is paid to the Authority after the date or expiry of a period of one year from the date on which possession is taken, interest at the rate of fifteen per cent. per annum shall be payable from the date of expiry of the said p eriod of one year on the amount of such excess or part thereof which has not been paid into Authority before the date of such expiry. 73. Re -determination of amount of compensation on the basis of the award of the Authority. (1) Where in an award under th is Chapter, the Authority concerned allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under section 23, the persons interested in all the other land covered by the same preliminary notification under sectio n 11, and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector, by written application to the Collector within three months from the date of the award of the Authority concerned re quire that the amount of compensation payable to them may be re -determined on the basis of the amount of compensation awarded by the Authority: Provided that in computing the period of three months within which an application to the Collector shall be made under this sub -section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded. (2) The Collector shall, on receipt of an application under sub -section (1), conduct an inquiry after giving noti ce to all the persons interested and giving them a reasonable opportunity of being heard, and make an award determining the amount of compensation payable to the applicants. (3) Any person who has not accepted the award under sub -section (2) may, by writte n application to the Collector, require that the matter be referred by the Collector for the determination of the Authority concerned. 74. Appeal to High Court. (1) The Requiring Body or any person aggrieved by the Award passed by an Authority under sectio n 69 may file an appeal to the High Court within sixty days from the date of Award: Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be file d within a further period not exceeding sixty days. (2) Every appeal referred to under sub -section (1) shall be heard as expeditiously as possible and endeavour shall be made to dispose of such appeal within six months from the date on which the appeal is presented to the High Court. Explanation .For the purposes of this section, High Court means the High Court within the jurisdiction of which the land acquired or proposed to be acquired is situated. CHAPTER IX APPORTIONMENT OF COMP ENSATION 75. Particula rs of apportionment to be specified. When there are several persons interested, if such persons agree in the apportionment of the compensation, the particulars of such apportionment shall be specified in the award, and as between such persons the award sha ll be conclusive evidence of the correctness of the apportionment. 76. Dispute as to apportionment. When the amount of compensation has been settled, if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to who m the same or any part thereof is payable, the Collector may refer such disputes to the Authority. CHAPTER X PAYMENT 77. Payment of compensation or deposit of same in Authority. (1) On making an award under section 30, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award and shall pay it to them by depositing the amount in their bank accounts unless prevented by someone or more of the contingencies mentioned in 38 sub-section (2). (2) If the person entitled to compensation shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Authority to which a reference under section 64 would be submitted: Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount: Provided further that no person who has received the amount otherwise than under protest shall be entitled to make any application under sub -section (1) of section 64: Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto. 78. Investment of money deposited in respect of lands belonging to person incompetent to alienate. (1) If any money is deposited in the Authority concerned under sub -section ( 2) of section 77 and it appears that the land in respect whereof the same was awarded belonged to any person who had no power to alienate the same, the Authority concerned shall (a) order the money to be inve sted in the purchase of other lands to be held under the like title and conditions of ownership as the land in respect of which such money shall have been deposited was held; or (b) if such purchase cannot be effected forthwith, then in such Government of other approved securities as the Authority concerned shall think fit, and shall direct the payment of the interest or other proceeds arising from such investment to the person or persons who would for the time being have been entitled to the possession of the said land, and such moneys shall remain so deposited and invested until the same be applied (i) in the purchase of such other lands as aforesaid; or (ii) in payment to any person or persons becoming absolutely entitled thereto. (2) In all cases of mon ey deposited to which this section applies the Authority concerned shall order the costs of the following matters, including therein all reasonable charge and expenses incident thereon, to be paid by the Collector, namely: (a) the costs of such investment s as aforesaid; (b) the costs of the orders for the payment of the interest or other proceeds of the securities upon which such moneys are for the time being invested, and for the payment out of the Authority concerned of the principal of such moneys, and of all proceedings relating thereto, except such as may be occasioned by litigation between adverse claimants. 79. Investment of money deposited in other cases. When any money shall have been deposited in the Authority concerned under this Act for any caus e other than the causes mentioned in section 78, the Authority may, on the application of any party interested or claiming an interest in such money, order the same to be invested in such Government or other approved securities as it may think proper, and paid in such manner as it may consider will give the parties interested therein the same benefit from it as they might have had from the land in respect whereof such money shall have been deposited or as near thereto as may be. 80. Payment of interest. Whe n the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of nine per cent. per annum from the time of so taking possession until it s hall have been so paid or deposited: Provided that if such compensation or any part thereof is not paid or deposited within a period of one year from the date on which possession is taken, interest at the rate of fifteen per cent. per annum 39 shall be payabl e from the date or expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry. CHAPTER XI TEMPORARY OCCUPATION OF LAND 81. Temporary occupation of waste or arable land, procedure when difference as to compensation exists. (1) Whenever it appears to the appropriate Government that the temporary occupation and use of any waste or arable land are needed for any public purpose, the appropriate Government may direct the Collector to procure the occupation and use of the same for such terms as it shall think fit, not exceeding three years from the commencement of such occupation. (2) The Collector shall thereupon give notice in writing to the person interested in such land of the purpose for which the same is needed, and shall, for the occupation and use thereof for such term as aforesaid, and for the materials (if any) to be taken therefrom, pay to them such compensation, either in a gross sum of money, or by monthly or ot her periodical payments, as shall be agreed upon in writing between him and such persons respectively. (3) In case the Collector and the persons interested differ as to the sufficiency of the compensation or apportionment thereof, the Collector shall refer such difference to the decision of the Authority. 82. Power to enter and take possession and compensation on restoration. (1) On payment of such compensation, or on executing such agreement, or on making a reference under section 64, the Collector may ent er upon and take possession of the land, and use or permit the use thereof in accordance with the terms of the said notice. (2) On the expiration of the term, the Collector shall make or tender to the persons interested compensation for the damage (if any) done to the land and not provided for by the agreement, and shall restore the land to the persons interested therein: Provided that, if the land has become permanently unfit to be used for the purpose for which it was used immediately before the commencem ent of such term, and if the persons interested shall so require, the appropriate Government shall proceed under this Act to acquire the land as if it was needed permanently for a public purpose. 83. Difference as to condition of land. In case the Collecto r and persons interested differ as to the condition of the land at the expiration of the term, or as to any matter connected with the said agreement, the Collector shall refer such difference to the decision of the Authority concerned. CHAPTER XII OFFENCES AND PENALTIES 84. Punishment for false information, mala fide action, etc. (1) If a person, in connection with a requirement or direction under this Act, provides any information that is false or misleading, or produces any false document, he shall be lia ble to be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one lakh rupees, or with both. (2) Any rehabilitation and resettlement benefit availed of by making a false claim or thro ugh fraudulent means shall be liable to be recovered by the appropriate Government in the manner as may be prescribed. (3) Disciplinary proceedings may be drawn up by the disciplinary authority against a Government servant, who if proved to be guilty of a mala fide action in respect of any provision of this Act, shall be liable to such punishment including a fine as the disciplinary authority may
fide action in respect of any provision of this Act, shall be liable to such punishment including a fine as the disciplinary authority may decide. 85. Penalty for contravention of provisions of Act. If any person contravenes any of the provisions rela ting to payment of compensation or rehabilitation and resettlement, every such person shall be liable to a punishment of six months which may extend to three years or with fine or with both. 86. Offences by companies. (1) Where an offence under this Act ha s been committed by a 40 company, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, shall be deemed to be guilty of the offence and shall be liable to b e proceeded against and punished accordingly: Provided that nothing contained in this sub -section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he had exercised all due dilig ence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub -section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance o f, or that the commission of the offence is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence a nd shall be liable to be proceeded against and punished accordingly. Explanation .For the purposes of this section, (a)company means any body corporate and includes a firm or other association of individuals and a Requiring Body; and (b) director , in relation to a firm, means a partner in the firm. 87. Offences by Government departments. (1) Where an offence under this Act has been committed by any department of the Government, the head of the department, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this section shall render any person liable to any punishment if such person proves that the offence was committed without his knowledge or that such pers on exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub -section (1), where any offence under this Act has been committed by a Department of the Government and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any officer, other than the head of the department, such officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded again st and punished accordingly. STATE AMENDMENTS Andhra Pradesh In the principal Act, for section 87, along with the marginal heading the following section shall be substituted, namely: - 87. Offences by Government officials. Where any offence under this Act has been committed by any person who is or was employed in the Central Government or the State Government, as the case may be, at the time of commission of such alleged offence, the Court shall take cognizance of such offence provided the procedure laid d own in section 197 of the Code of Criminal Procedure, 1973 (Act 2 of 1974) is followed. [Vide Andhra Pradesh Act 22 of 2018, sec. 10 (w.e.f. 1 -1-2014).] Maharashtra For section 87 of the principal Act, the following section shall be substituted, namely: - 87. Offences by Government Officials. Where any offence under this Act has been committed by any person who is or was employed in the Central Government or the State Government, as the case may be, at the time of commission of such alleged offence, the c ourt shall take cognizance of such offence provided the procedure laid down in section 197 of the Code of Criminal Procedure, 1973 (2 of 1974), in its application to the State of Maharashtra, is followed. [Vide Maharashtra Act 37 of 2018, sec. 9 (w.e.f. 26 -4-2018). ] Haryana After section 87 of the principal Act, the following section shall be inserted, namely: - 87A. Offences by Government officials .- Where an offence under this Act has been committed by any person who is or was employed in the Central Government or State Government, as the case may be, at the time of commission of such alleged offence, no court shall take cognizance of such 41 offence unless the procedure laid down in section 197 of the Code of Criminal Procedure, 1973 (Cent ral Act 2 of 1974) has been followed. [Vide Haryana Act 21 of 2018, sec. 4 (w.e.f. 9-5-2018).] 88. Cognizance of offences by court. No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall be competent to t ry any offence punishable under this Act. 89. Offences to be non -cognizable. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 ( 2 of 1974 ) every offence under this Act shall be deemed to be non -cognizable. 90. Offences to be cogniz able only on complaint filed by certain persons. No court shall take cognizance of any offence under this Act which is alleged to have been committed by a Requiring Body except on a complaint in writing made by the Collector or any other officer authorised by the appropriate Government or any member of the affected family. CHAPTER XIII MISCELLANEOUS 91. Magistrate to enforce surrender. If the Collector is opposed or impeded in taking possession under this Act of any land, he shall, if a Magistrate, enforce the surrender of the land to himself, and if not a Magistrate, he shall apply to a Magistrate or to the Commissioner of Police, and such Magistrate or Commissioner, as the case may be, shall enforce the surrender of the land to the Collector. 92. Service o f notice. (1) Save as otherwise provided in section 66, the service of any notice under this Act shall be made by delivering or tendering a copy thereof signed, in the case of a notice, by the officer therein mentioned, and, in the case of any other notice , by order of the Collector. (2) Whenever it may be practicable, the service of the notice shall be made on the person therein named. (3) When such person cannot be found, the service may be made on any adult member of his family residing with him; and, if no such adult member can be found, the notice may be served by fixing the copy on the outer door of the house in which the person therein named ordinarily dwells or carries on business, or by fixing a copy thereof in some conspicuous place in the office o f the officer aforesaid or of the Collector or in the court -house, and also in some conspicuous part of the land to be acquired: Provided that, if the Collector or Judge shall so direct, a notice may be sent by post, in a letter addressed to the person nam ed therein at his last known residence, address or place of business and also publish the same in at least two national daily newspapers and also on his website. 93. Completion of acquisition not compulsory, but compensation to be awarded when not complete d.(1) The appropriate Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. (2) Whenever the appropriate Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the procee dings under this Act relating to the said land. 94. Acquisition of part of house or building. (1) The provisions of this Act shall not be put in force for the purpose of acquiring a part only of any house, manufactory or other building, if the owner desire s that the whole of such house, manufactory or building shall be so acquired: Provided that, if any question shall arise as to whether any land proposed to be taken under this Act does or does not form part of a house, manufactory or building within the me aning of this section, the Collector shall refer the determination of such question to the Authority concerned and shall not be taken possession of such land until after the question has been determined. (2) In deciding on such a reference made under the p roviso to sub -section (1), the Authority concerned shall have regard to the question whether the land proposed to be taken, is reasonably required for the full and unimpaired use of the house, manufactory or building. (3) If, in the case of any claim under this Act, by a person interested, on account of the severing of 42 the land to be acquired from his other land, the appropriate Government is of opinion that the claim is unreasonable or excessive, it may, at any time before the Collector has made his award, order the acquisition of the whole of the land of which the land first sought to be acquired forms a part. (4) In the case of any acquisition of land so required no fresh declaration or other proceedings under sections 11 to 19, (both inclusive) shall be necessary; but the Collector shall without delay furnish a copy of the order of the appropriate Government to the person interested, and shall thereafter proceed to make his award under section 23. 95. Acquisition of land at cost of a local authority or Re quiring Body. (1) Where the provisions of this Act are put in force for the purpose of acquiring land at the cost of any fund controlled or managed by a local authority or of any Requiring Body, the charges of land incidental to such acquisition shall be d efrayed from or by such fund or Requiring Body. (2) In any proceeding held before a Collector or Authority concerned in such cases the local authority or Requiring Body concerned may appear and adduce evidence for the purpose of determining the amount of c ompensation: Provided that no such local authority or Requiring Body shall be entitled to demand a reference to the Authority concerned under section 64. 96. Exemption from income -tax, stamp duty and fees. No income tax or stamp duty shall be levied on any award or agreement made under this Act, except under section 46 and no person claiming under any such award or agreement shall be liable to pay any fee for a copy of the same. 97. Acceptance of certified copy as evidence. In any proceeding under this Act, a certified copy of a document registered under the Registration Act, 1908 (16 of 1908) including a copy given under section 57 of that Act, may be accepted as evidence of the transaction recorded in such document. 98. Notice in case of suits for anything done in pursuance of Act. No suit or other proceeding shall be commenced against any person for anything done in pursuance of this Act, without giving to such person a months previous notice in writing of the intended proceeding, and of the cause thereof , nor after tender of sufficient amendments. 99. No change of purpose to be allowed. No change from the purpose or related purposes for which the land is originally sought to be acquired shall be allowed: Provided that if the land acquired is rendered unus able for the purpose for which it was acquired due to a fundamental change because of any unforeseen circumstances, then the appropriate Government may use such land for any other public purpose. 100. No change of ownership without permission to be allowed .No change of ownership without specific permission from the appropriate Government shall be allowed. 101. Return of unutilised land. When any land acquired under this Act remains unutilised for a period of five years from the date of taking over the pos session, the same shall be returned to the original owner or owners or their legal heirs, as the case may be, or to the Land Bank of the appropriate Government by reversion in the manner as may be prescribed by the appropriate Government. Explanation. For the purpose of this section, Land Bank means a governmental entity that focuses on the conversion of Government owned vacant, abandoned, unutilised acquired lands and tax-delinquent properties into productive use. STATE AMENDMENTS Andhra Pradesh In the principal Act, in section 101, for the words a period of five years , the words a period specified for setting up of any project or for five years, whichever is later, shall be substituted. [Vide Andhra Pradesh Act 22 of 2018, sec. 1 1 (w.e.f. 1 -1-2014) .] Haryana After section 101 of the principal Act, the following section shall be inserted, namely: - 101A. Power to denotify land. - When any public purpose, for which the land acquired under the Land Acquisition Act, 1894 (Central Act 1 of 1894) becomes unviable or non -essential, the State Government shall be at liberty to denotify such land, on such terms, as considered 43 expedient by the State Government, including the payment of compensation on account of damages, if any, sustained by the land owner due to such acquisition: Provided that where a part of the acquired land has been utilized or any encumbrances have been created, the landowner may be compensated by providing alternative land alongwith payment of damages, if any, as determined by the State G overnment. [Vide Haryana Act 21 of 2018, sec. 5 (w.e.f. 9-5-2018).] 102. Difference in price of land when transferred for higher consideration to be shared. Whenever the ownership of any land acquired under this Act is transferred to any person for a consideration, without any development having taken place on such land, forty per cent. of the appreciated land value shall be shared amongst the persons from whom the lands were acquired or their heirs, in proportion to the value at which the lands were acq uired within a period of five years from the date of acquisition: Provided that benefit shall accrue only on the first sale or transfer that occurs after the conclusion of the acquisition proceedings. 103. Provisions to be in addition to existing laws. The provisions of this Act shall be in addition to and not in derogation of, any other law for the time being in force. 104. Option of appropriate Government to lease. Notwithstanding anything contained in this Act, the appropriate Government shall, wherever possible, be free to exercise the option of taking the land on lease, instead of acquisition, for any public purpose referred to in sub -section (1) of section 2. 105. Provisions of this Act not to apply in certain cases or to apply with certain modificatio ns.(1) Subject to sub -section (3), the provisions of this Act shall not apply to the enactments
modificatio ns.(1) Subject to sub -section (3), the provisions of this Act shall not apply to the enactments relating to land acquisition specified in the Fourth Schedule. (2) Subject to sub -section (2) of section 106, the Central Government may, by notification, omit or add to any of the enactments specified in the Fourth Schedule. (3) The Central Government shall, by notification, within one year from the date of commencement of this Act, direct that any of the provisions of this Act relating to the determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules, being beneficial to the affected families, shall apply to the cases of land acquisition under the enactments specified in th e Fourth Schedule or shall apply with such exceptions or modifications that do not reduce the compensation or dilute the provisions of this Act relating to compensation or rehabilitation and resettlement as may be specified in the notification, as the case may be. (4) A copy of every notification proposed to be issued under sub -section (3), shall be laid in draft before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in disapproving the issue of the notification or both Houses agree in making any modification in the notification, the notification shall not be issued or, as the case may be, shall be issued only in such modified form as may be agreed upon by both the Houses of Parliament. STATE AMENDMENTS Maharashtra After section 105 of the principal Act, the following s ection shall be inserted, namely : - 105-A. Provisions of this Act not to apply to certain Maharashtra Acts or to apply with certain modifications. (1) Subject to sub -section ( 2), the provisions of this Act shall not apply to acquisition of land under the enactments specified in the Fifth Schedule. (2) The State Government may, by notification, within one year from the date of commencement of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Maharashtra Am endment) Act, 2018 (Mah. XXXVII of 2018), direct that any of the provisions of this Act, relating to the determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules, be ing beneficial to the affected families, shall apply to the cases of land acquisition under the enactments specified in the Fifth Schedule or shall apply with such exceptions or modifications that do not reduce 44 the compensation or dilute the provisions of this Act relating to the compensation, rehabilitation and resettlement as may be specified in the notification, as the case may be : Provided that, no such notification shall be issued except on a resolution passed by both Houses of the State Legislature. [Vide Maharashtra Act 37 of 2018, sec. 10 (w.e.f. 26 -4-2018).] Maharashtra Amendment of section 105A of Act 30 of 2013. In section 105 -A of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013) , in its application to the State of Maharashtra, as amended by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Maharashtra Amendment) Act, 2018 (Mah XXXVII of 2018) , in sub -section (2), for the words, brackets and figures within one year from the date of commencement of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Maharashtra Amendment) Act, 2018 (Mah XXXVII of 2018) the words, brackets and figures within one year from the date of commencement of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Maharashtra Amendment) Act, 2020 (Mah. III of 2022) shall be substituted. [Vide Maharashtra Act III of 20 22, sec. 2 (w.e.f. 2 0-01-2022).] 106. Power to amend Schedule. (1) The Central Government may, by notification, amend or alter any of the Schedules to this Act, without in any way reducing the compensation or diluting the provisions of this A ct relating to compensation or rehabilitation and resettlement. (2) A copy of every notification proposed to be issued under sub -section (1), shall be laid in draft before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in disapproving the issue of the notification or both Houses agree in making any modification in the notification, the notification shall not be issued or as the case may be, shall be issued only in such modified form as may be agreed upon by both the Houses of Parliament. 107. Power of State Legislatur es to enact any law more beneficial to affected families. Nothing in this Act shall prevent any State from enacting any law to enhance or add to the entitlements enumerated under this Act which confers higher compensation than payable under this Act or ma ke provisions for rehabilitation and resettlement which is more beneficial than provided under this Act. 108. Option to affected families to avail better compensation and rehabilitation and resettlement. (1) Where a State law or a policy framed by the Gove rnment of a State provides for a higher compensation than calculated under this Act for the acquisition of land, the affected persons or his family or member of his family may at their option opt to avail such higher compensation and rehabilitation and res ettlement under such State law or such policy of the State. (2) Where a State law or a policy framed by the Government of a State offers more beneficial rehabilitation and resettlement provisions under that Act or policy than under this Act, the affected persons or his family or member of his family may at his option opt to avail such rehabilitation and resettlement provisions under such State law or such policy of the State instead of under this Act. 109. Power of appropriate Government to make rules. (1) Subject to the other provisions of this Act, the appropriate Government may, by notification, make rules for carrying out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing, such rules may provide for al l or any of the following matters, namely: (a) the process of obtaining the prior consent under the first proviso to sub -section (2) of section 2; (b) the limits of land in rural areas or urban areas under clause (a) of sub -section ( 3) of section 2; 45 (c) the manner and the time limit for carrying out social impact assessment study under sub-section (1) of section 4; (d) the manner of preparing and publishing social impact assessment study reports under sub-section (1) of section 6; (e) the manner and ti me for conducting survey and undertaking census under sub -section (2) of section 16; (f) the manner of preparing draft Rehabilitation and Resettlement Scheme under sub-section (5) of section 16; (g) the manner of conducting public hearing under sub -sectio n (5) of section 16; (h) the manner of depositing amount by the Requiring Body under second proviso to sub-section (2) of section 19; (i) the manner in which and the period within which any excess amount paid may be recovered under sub -section (3) of sect ion 33; (j) the form in which the Development Plan shall be prepared under sub -section (4) of section 41; (k) the powers, duties and responsibilities of Administrator under sub -section (2) of section 43; (l) the procedure of Rehabilitation and Resettlemen t Committee under sub -section (3) of section 45; (m) the procedure to be followed by the Rehabilitation and Resettlement Committee and allowances to be paid to the experts under sub -section (3) of section 48; (n) the procedures to be followed by the State Monitoring Committee and the allowances payable to the experts under sub -section (3) of section 50; (o) the salaries and allowances and other conditions of service of the Registrar and other officers and employees of an Authority under sub -section (3) of section 55; (p) the salary and allowances payable to and the other terms and conditions of service (including pension, gratuity and other retirement benefits) of, the Presiding Officer of an Authority under section 56; (q) any other matter under clause (g) of sub -section (1) of section 60; (r) the manner of recovery of the rehabilitation and resettlement benefits, availed of by making false claim or through fraudulent means, under sub -section (2) of section 84; (s) the manner of returning the unutilised land by reversion under section 101; (t) manner of publication wherever the provisions of this Act provide for; (u) any other matter which is required to be or may be specified under this Act. STATE AMENDMENTS Andhra Pradesh In the principal Act, in section 10 9, in sub -section (2), after clause (u) the following clause shall be added, namely: - (v) to give effect to the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Andhra Pradesh Amendment) Act, 2018 [Vide Andhra Pradesh Act 22 of 2018, sec. 1 2 (w.e.f. 1 -1-2014).] 110. Rules made by Central Government to be laid before Parliament. Every rule made by the Central Government under this Act shall be laid as soon as may be after it is made, before each House of Par liament while it is in session for a total period of thirty days which may be comprised in one session or two or more successive sessions, and if, before the expiry of the session immediately 46 following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule. 111. Rules made by State Government to be laid before State Legislature. Every rule made by the State Government under this Act shall be laid, as soon as may be after it is made, before each House of the State Legislature where it consists of two Houses, or where such Legislature consists of one House, before that House. 112. Previous publication of rules made by Central and State Government. The power to make rules by the Central or State Government under this Act shall be subject to the condition of the rules, being made after previous publication. 113. Power to remove difficulties. (1) If any difficulty arises in giving effect to the provisions of this Part, the Central Government may, by order, make such provisions or give such directions not inconsistent with the provisions of this Act as may appear to it to be necessary or expedient for the removal of the difficulty: Provided that no such power shall be exe rcised after the expiry of a period of two years from the commencement of this Act. (2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament. 114. Repeal and saving. (1) The Land Acquisition Act, 1894 (1 of 1894) is hereby repealed. (2) Save as otherwise provided in this Act the repeal under sub -section (1) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897) with regard t o the effect of repeals. 47 THE FIRST SCHEDULE [See section 30 (2)] COMPENSATION FOR LAND OWNERS The following components shall constitute the minimum compensation package to be given to those whose land is acquired and to tenants referred to in clause ( c) of section 3 in a proportion to be decided by the appropriate Government. Serial No. Component of compensation package in respect of land acquired under the Act Manner of determination of value Date of determination of value (1) (2) (3) (4) 1. Market val ue of land To be determined as provided under section 26. 2. Factor by which the market value is to be multiplied in the case of rural areas 1.00 (One) to 2.00 (Two) based on the distance of project from urban area, as may be notified by the appropriate Government. 3. Factor by which the market value is to be multiplied in the case of urban areas 1(One). 4. Value of assets attached to land or building To be determined as provided under section 29. 5. Solatium Equivalent to one hundred per cent. of t he market value of land mentioned against serial number 1 multiplied by the factor specified against serial number 2 for rural areas or serial number 3 for urban areas plus value of assets attached to land or building against serial number 4 under column ( 2). 6. Final award in rural areas Market value of land mentioned against serial number 1 multiplied by the factor specified against serial number 2 plus value of assets attached to land or building mentioned against serial number 4 under column (2) plu s solatium mentioned against serial number 5 under column (2). 7. Final award in urban areas Market value of land mentioned against serial number 1 multiplied by the factor specified against serial number 3 plus value of assets attached to land or buildi ng mentioned against serial number 4 under column (2) plus solatium mentioned against serial number 5 under column (2). 8. Other component, if any, to be included NOTE. The date on which values mentioned under column (2) are determined should be indic ated under column (4) against each serial number. 48 THE SECOND SCHEDULE [See sections 31( 1), 38(1) and 105( 3)]
SCHEDULE [See sections 31( 1), 38(1) and 105( 3)] ELEMENTS OF REHABILITATION AND RESETTLEMENT ENTITLEMENTS FOR ALL THE AFFECTED FAMILIES (BOTH LAND OWNERS AND THE FAMILIES WHOSE LIVELIHOOD IS PRIM ARILY DEPENDENT ON LAND ACQUIRED) IN ADDITION TO THOSE PROVIDED IN THE FIRST SCHEDULE. Serial No. Elements of Rehabilitation and Resettlement Entitlements Entitlement/provision Whether provided or not (if provided, details to be given) (1) (2) (3) (4) 1. Provision of housing units in case of displacement (1) If a house is lost in rural areas, a constructed house shall be provided as per the Indira Awas Yojana specifications. If a house is lost in urban areas, a constructed house shall be provided, which will be not less than 50 sqmts in plinth area. (2) The benefits listed above shall also be extended to any affected family which is without homestead land and which has been residing in the area continuously for a period of not less than three years preced ing the date of notification of the affected area and which has been involuntarily displaced from such area: Provided that any such family in urban areas which opts not to take the house offered, shall get a one -time financial assistance for house construc tion, which shall not be less than one lakh fifty thousand rupees: Provided further that if any affected family in rural areas so prefers, the equivalent cost of the house may be offered in lieu of the constructed house: Provided also that no family affect ed by acquisition shall be given more than one house under the provisions of this Act. Explanation. The houses in urban area may, if necessary, be provided in multi -storied building complexes. 2. Land for Land In the case of irrigation project, as far as possible and in lieu of compensation to be paid for land acquired, each affected family owning agricultural land in the affected area and whose land has been acquired or lost, or who has, as a consequence of the acquisition or loss of land, been reduced t o the status of a marginal farmer or landless, shall be allotted, in the name of each person included in the records of rights with regard to the affected family, a minimum of one acre of land in the command area of the project for which the land is acquir ed: Provided that in every project those persons losing land and belonging to the Scheduled Castes or the Scheduled Tribes will be provided land equivalent to land acquired or two and a one -half acres, whichever is lower. 49 (1) (2) (3) (4) 3. Offer forDe veloped Land In case the land is acquired for urbanisation purposes, twenty per cent. of the developed land will be reserved and offered to land owning project affected families, in proportion to the area of their land acquired and at a price equal to the cost of acquisition and the cost of development: Provided that in case the land owning project affected family wishes to avail of this offer, an equivalent amount will be deducted from the land acquisition compensation package payable to it. 4. Choice of Annuity or Employment The appropriate Government shall ensure that the affected families are provided with the following options: (a) where jobs are created through the project, after providing suitable training and skill development in the required fiel d, make provision for employment at a rate not lower than the minimum wages provided for in any other law for the time being in force, to at least one member per affected family in the project or arrange for a job in such other project as may be required; or (b) onetime payment of five lakhs rupees per affected family; or (c) annuity policies that shall pay not less than two thousand rupees per month per family for twenty years, with appropriate indexation to the Consumer Price Index for Agricultural Labour ers. 5. Subsistence grant fordisplaced families for a period of one year Each affected family which is dis placed from the land acquired shall be given a monthly subsis tence allowance equivalent to three thousand rupees per month for a period of one yea r from the date of award. In addition to this amount, the Scheduled Castes and the Scheduled Tribes displaced from Scheduled Areas shall receive an amount equivalent to fifty thousand rupees. In case of displacement from the Scheduled Areas, as far as poss ible, the affected families shall be relocated in a similar ecological zone, so as to preserve the economic opportunities, language, culture and community life of the tribal communities. 6. Transportation cost for displaced families Each affected family which is displaced shall get a one - time financial assistance of fifty thou sand rupees as transportation cost for shifting of the family, building materials, belongings and cattle. 7. Cattle shed/Petty shops cost Each affected family having cattle or hav ing a petty shop shall get one -time financial assistance of such amount as the appropriate Government may, by notification, specify subject to a minimum of twenty - five thousand rupees for construction of cattle shed or petty shop as the case may be. 50 (1) (2) (3) (4) 8. One-time grant to artisan, small traders and certain others Each affected family of an artisan, small trader or self -employed person or an affected family which owned non - agricultural land or commercial, industrial or institutional st ructure in the affected area, and which has been involuntarily displaced from the affected area due to land acquisition, shall get one-time financial assistance of such amount as the appropriate Government may, by notification, specify subject to a minimum of twenty -five thousand rupees. 9. Fishing rights In cases of irrigation or hydel projects, the affected families may be allowed fishing rights in the reservoirs, in such manner as may be prescribed by the appropriate Government. 10. One-time Resettle ment Allowance Each affected family shall be given a one-time Resettlement Allowance of fifty thousand rupees only. 11. Stamp duty and registration fee (1) The stamp duty and other fees payable for registration of the land or house allotted to the aff ected families shall be borne by the Requiring Body. (2) The land for house allotted to the affected families shall be free from all encumbrances. (3) The land or house allotted may be in the joint names of wife and husband of the affected family. 51 THE THIRD SCHEDULE [See sections 32, 38( 1) and 105( 3)] PROVISION OF INFRASTRUCTURAL AMENITIES For resettlement of populations, the following infrastructural facilities and basic minimum amenities are to be provided at the cost of the Requisitioning Au thority to ensure that the resettled population in the new village or colony can secure for themselves a reasonable standard of community life and can attempt to minimise the trauma involved in displacement. A reasonably habitable and planned settlement wo uld have, as a minimum, the following facilities and resources, as appropriate: Serial No. Component of infrastructure amenities provided/proposed to be provided by the acquirer of land Details of infrastructure amenities provided by the acquirer of land (1) (2) (3) 1. Roads within the resettled villages and an all -weather road link to the nearest pucca road, passages and easement rights for all the resettled families be adequately arranged. 2. Proper drainage as well as sanitation plans executed before physical resettlement. 3. One or more assured sources of safe drinking water for each family as per the norms prescribed by the Government of India. 4. Provision of drinking water for cattle. 5. Grazing land as per proportion acceptable in the State . 6. A reasonable number of Fair Price Shops. 7. Panchayat Ghars, as appropriate. 8. Village level Post Offices, as appropriate, with facilities for opening saving accounts. 9. Appropriate seed -cum-fertilizer storage facility if needed. 10. Effor ts must be made to provide basic irrigation facilities to the agricultural land allocated to the resettled families if not from the irrigation project, then by developing a cooperative or under some Government scheme or special assistance. 11. All new vi llages established for resettlement of the displaced persons shall be provided with suitable transport facility which must include public transport facilities through local bus services with the nearby growth centres/urban localities. 12. Burial or crema tion ground, depending on the caste - communities at the site and their practices. 13. Facilities for sanitation, including individual toilet points. 14. Individual single electric connections (or connection through non - conventional sources of energy li ke solar energy), for each household and for public lighting. 15. Anganwadis providing child and mother supplemental nutritional services. 16. School as per the provisions of the Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009 ); 52 (1) (2) (3) 17. Sub-health centre within two kilometres range. 18. Primary Health Centre as prescribed by the Government of India. 19. Playground for children. 20. One community centre for every hundred families. 21. Places of worship and c howpal/tree platform for every fifty families for community assembly, of numbers and dimensions consonant with the affected area. 22. Separate land must be earmarked for traditional tribal institutions. 23. The forest dweller families must be provided, where possible, with their forest rights on non -timber forest produce and common property resources, if available close to the new place of settlement and, in case any such family can continue their access or entry to such forest or common property in the area close to the place of eviction, they must continue to enjoy their earlier rights to the aforesaid sources of livelihood. 24. Appropriate security arrangements must be provided for the settlement, if needed. 25. Veterinary service centre as per no rms. NOTE. Details of each component of infrastructural amenities mentioned under column (2) against serial numbers 1 to 25 should be indicated by the acquirer of land under column (3). 53 THE FOURTH SCHEDULE (See section 105) LIST OF ENACTMENTS REGULATIN G LAND ACQUISITION AND REHABILITATION AND RESETTLEMENT 1. The Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958). 2. The Atomic Energy Act, 1962 (33 of 1962). 3. The Damodar Valley Corporation Act, 1948 (14 of 1948). 4. The I ndian Tramways Act, 1886 (11 of 1886) 5. The Land Acquisition (Mines) Act, 1885 (18 of 1885). 6. The Metro Railways (Construction of Works) Act, 1978 (33 of 1978). 7. The National Highways Act, 1956 (48 of 1956). 8. The Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 (50 of 1962). 9. The Requisitioning and Acquisition of Immovable Property Act, 1952 (30 of 1952). 10. The Resettlement of Displaced Persons (Land Acquisition) Act, 1948 (60 of 1948). 11. The Coal Bearing A reas Acquisition and Development Act, 1957 (20 of 1957). 12. The Electricity Act, 2003 (36 of 2003). 13. The Railways Act, 1989 (24 of 1989). 54 STATE AMENDMENTS Maharashtra After the Fourth Schedule to the principal Act, the followi ng Schedule shall be added, namely: - THE FIFTH SCHEDULE (See section 105 -A) LIST OF MAHARASHTRA ENACTMENTS REGULATING LAND ACQUISITION IN THE STATE OF MAHARASHTRA 1. The Maharashtra Highways Act (LV of 1955). 2. The Maharashtra Industrial Developmen t Act, 1961 (Mah. III of 1962). 3. The Maharashtra Regional and Town Planning Act, 1966 (Mah. XXXVII of 1966). 4. The Maharashtra Housing and Area Development Act, 1976 (Mah. XXVIII of 1977). [Vide Maharashtra Act 37 of 2018, sec. 12 (w.e.f. 26-4-2018).]
THE SPECIAL MARRIAGE ACT, 1954 ACT NO. 43 OF 19541 [9th October , 1954 .] An Act to provide a special form of marriage in certain cases, for the registration of such and certain other marriages and for divorce. BE it enacted by Parliament in the Fifth Year of the Republic of India as follows: CHAPTER I PRELIMINARY 1. Short title, extent and commencement .(1) This Act may be called the Special Marriage Act, 1954. (2) It extends to the whole of India 2**, and applies also to citizens of India domiciled in the territories to which this Act extends who are 3[in th e State of Jammu and Kashmir]. (3) It shall come into force on such date4 as the Central Government may, by notification in the Official Gazette, appoint. 2. Definitions .In this Act, unless the context otherwise requires, 5 * * * * (b) degrees of prohibited relationship -a man and any of the persons mentioned in Part I of the First Schedule and a woman and any of the persons mentioned in Part II of the said Schedule are within the degrees of prohibited relationship. Explanation I .Relation ship includes, (a) relationship by half or uterine blood as well as by full blood; (b) illegitimate blood relationship as well as legitimate; (c) relationship by adoption as well as by blood; and all terms of relationship in this Act shall be construed ac cordingly. Explanation II .Full blood and half blood two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife and by half blood when they are descended from a common ancestor but by different wives. Explanation III .Uterine blood two persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husbands. Explanation IV .In Explanations II and III, ancestor includes the father and ancestress the mother; 6* * * * * (d) district in relation to a Marriage Officer, means the area for which he is appointed as such under sub -section ( 1) or sub -section ( 2) of section 3; 7[(e) district court means, in any are a for which there is a city civil court, that court, and in any other area, the principal civil court of original jurisdiction, and includes any other civil court which 1. The Act has been extended to Dadra and Nagar Haveli by Reg. 6 of 1963, s. 2 and Schedule I and to Pondicherry by Reg. 7 of 1963, Section 3 and Schedule I ( w.e.f. 1 -10-1963). 2. The words except the State of Jammu and Kashmir omitted by Act 34 of 2019, s. 95 and the Fifth Schedule (w.e.f. 31 -10- 2019). 3. Subs. by Act 33 of 1969, s. 29, for outside the said territories (w.e.f. 31 -8-1969). 4. 1st January, 1955, vide notification No. S.R.O. 3606, dated 17th December, 1954, published in the Gazette of India, Extraordinary, P art II, Section 3. The Act h as been extended to State of Sikkim vide notification No. S. O. 1629(E) , dated 15th April 2021 , see Gazette of Ind ia, Extraordinary , Part II, se c. 3 (ii). 5. Omitted by Act 33 of 1969, s. 29. 6. Omitted by s. 29, ibid. 7. Subs. by Act 68 of 1976, s. 20, for clause ( e) (w.e.f. 27 -5-1976). 5 may be specified by the State Government by notification in the Official Gazette as hav ing jurisdiction in respect of the matters dealt with in this Act;] (f) prescribed means prescribed by rules made under this Act; 1[(g) State Government , in relation to a Union territory, means the administrator the reof.] 3. Marriage Officers .(1) For the purposes of this Act, the State Government may, by, notification in the Official Gazette, appoint one or more Marriage Officers for the whole or any part of the State. 2[(2) For the purposes of this Act, in its application to citizens of India domicile d in the territories to which this Act extends who are in the State of Jammu and Kashmir, the Central Government may, by notification in the Official Gazette, specify such officers of the Central Government as it may think fit to be the Marriage Officers f or the State or any part thereof.] CHAPTER II SOLEMNIZATION OF SPECIAL MARRIAGES 4. Conditions relating to solemnization of special marriages .Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely: (a) neither party has a spouse living; 3[(b) neither party (i) is incapable of giving a valid c onsent to it in consequence of unsoundness of mind; or (ii) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (iii) has been subject to recurrent attacks of insanity 4* * *;] (c) the male has completed the age of twenty -one years and the female the age of eighteen years; 5[(d) the parties are not within the degrees of prohibited relationship: Provided that where a custom govern ing at least one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship; and] 6[(e) where the marriage is solemnized in the State of Jammu and Kashmir, both parties are citizens of India domiciled in the territories to which this Act extends]. 7[Explanation .In this section, custom , in relation to a person belonging to any tribe, community, group or family, means any rule which the State Government may, by notification in the Official Gazette, specify in this behalf as applicable to members of that tribe, c ommunity, group or family: Provided that no such notification shall be issued in relation to the members of any tribe, community, group or family, unless the State Government is satisfied (i) that such rule has been continuously and uniformly observed for a long time among those members; (ii) that such rule is certain and not unreasonable or opposed to public policy; and 1. Subs. by the A .O. (No. 3) Order, 1956 for cl ause ( g). 2. Subs . by Act 33 of 1969, s. 29, for sub -section ( 2) (w.e.f. 31 -8-1969). 3. Subs. by Act 68 of 1976, s. 21, for clause ( b) (w.e.f. 27 -5-1976). 4. The words or epilepsy omitted by Act 39 of 1999 , s. 4 (w.e.f. 29 -12-1999). 5. Subs. by Act 32 of 1963, s. 2, for clause ( d) (w.e.f. 22 -9-1963). 6. Subs. by Act 33 of 1969, s. 29, for clause ( e) (w.e.f. 31 -8-1969). 7. Ins. by Act 32 of 1963, s. 2 (w.e.f. 22 -9-1963). 6 (iii) that such rule, if applicable only to a family, has not been discontinued by the family.] 5. Notice of intended marriage .When a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notice thereof in writing in the form specified in the Second Schedule to the Marriage Officer of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given. 6. Marriage Notice Book and publication .(1) The Marriage Officer shall keep all notices given under section 5 with the records o f his office and shall also forthwith enter a true copy of every such notice in a book prescribed for that purpose, to be called the Marriage Notice Book, and such book shall be open for inspection at all reasonable times, without fee, by any person desiro us of inspecting the same. (2) The Marriage Officer shall cause every such notice to be published by affixing a copy thereof to some conspicuous place in his office. (3) Where either of the parties to an intended marriage is not permanently residing within the local limits of the district of the Marriage Officer to whom the notice has been given under section 5, the Marriage Officer shall also cause a copy of such notice to be transmitted to the Marriage Officer of the district within whose limits such part y is permanently residing, and that Marriage Officer shall thereupon cause a copy thereof to be affixed to some conspicuous place in his office. 7. Objection to marriage .(1) Any person may, before the expiration of thirty days from the date on which any such notice has been published under sub -section ( 2) of section 6, object to the marriage on the ground that it would contravene one or more of the conditions specified in section 4. (2) After the expiration of thirty days from the date on which notice of an intended marriage has been published under sub -section ( 2) of section 6, the marriage may be solemnized, unless it has been previously objected to under sub -section ( 1). (3) The nature of the objection shall be recorded in writing by the Marriage Officer in the Marriage Notice Book, be read over and explained if necessary, to the person making the objection and shall be signed by him or on his behalf. 8. Procedure on re ceipt of objection .(1) If an objection is made under section 7 to an intended marriage, the Marriage Officer shall not solemnize the marriage until he has inquired into the matter of the objection and is satisfied that it ought not to prevent the solemniz ation of the marriage or the objection is withdrawn by the person making it; but the Marriage Officer shall not take more than thirty days from the date of the objection for the purpose of inquiring into the matter of the objection and arriving at a decisi on. (2) If the Marriage Officer upholds the objection and refuses to solemnize the marriage, either party to the intended marriage may, within a period of thirty days from the date of such refusal, prefer an appeal to the district court within the local li mits of whose jurisdiction the Marriage Officer has his office, and the decision of the district court on such appeal shall be final, and the Marriage Officer shall act in conformity with the decision of the court. 9. Powers of Marriage Officers in respect of inquiries .(1) For the purpose of any inquiry under section 8, the Marriage Officer shall have all the powers vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit in respect of the following matters, namely: (a) summoning and enforcing the attendance of witnesses and examining them on oath; (b) discovery and inspection; (c) compelling the production of documents; (d) reception of evidence of affidavits; and (e) issuing commissions for the examination of witnesses; and any p roceeding before the Marriage Officer shall be deemed to be a judicial proceeding within the meaning of section 193 of the Indian Penal Code (45 of 1860). 7 Explanation .For the purpose of enforcing the attendance of any person to give evidence, the local limits of the jurisdiction of the Marriage Officer shall be the local limits of his district. (2) If it appears to the Marriage Officer that the objection made to an int ended marriage is not reasonable and has not been made in good faith he may impose on the person objecting costs by way of compensation not exceeding one thousand rupees and award the whole or any part thereof, to the parties to the intended marriage, and any order for costs so made may be executed in the same manner as a decree passed by the district court within the local limits of whose jurisdiction the Marriage Officer has his office. 10. Procedure on receipt of objection by Marriage Officer abroad .Where an objection is made under section 7 to a Marriage Officer 1[in the State of Jammu and Kashmir in respect of an intended marriage in the State], and the Marriage Officer, after making such inquiry into the matter as he thinks fit, entertains a doub t in respect thereof, he shall not solemnize the marriage but shall transmit the record with such statement respecting the matter as he thinks fit to the Central Government, and the Central Government, after making such inquiry into the matter and after ob taining such advice as it thinks fit, shall give its decision thereon in writing to the Marriage Officer who shall act in conformity with the decision of the Central Government. 11. Declaration by parties and witnesses .Before the marriage is solemnized the parties and three witnesses shall, in the presence of the Marriage Officer, sign a declaration in the form specified in the Third Schedule to this Act, and the declaration shall be countersigned by the Marriage Office r. 12. Place and form of solemnization .(1) The marriage may be solemnized at the office of the Marriage Officer, or at such other place within a reasonable distance therefrom as the parties may desire, and upon such conditions and the payment of such addi tional fees as may be prescribed. (2) The marriage may be solemnized in any form which the parties may choose to adopt: Provided that it shall not be complete and binding on the parties unless each party says to the other in the presence of the Marriage Of ficer and the three witnesses and in any language understood by the parties, I, (A), take the (B), to be my lawful wife (or husband) . 13. Certificate of marriage .(1) When the marriage has been solemnized, the Marriage Officer shall enter a certificate thereof in the form specified in the Fourth Schedule in a book to be kept by him for that purpose and to be called the Marriage Certificate Book and such certificate shall be signed by the parties to the marriage and the three witnesses. (2) On a certificate being entered in the Marriage Certificate Book by the Marriage Officer, th e Certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all formalities respecting the signatures of witnesses have been complied with. 14. New notice when marriage not solemnized with in three months .Whenever a marriage is not sole
have been complied with. 14. New notice when marriage not solemnized with in three months .Whenever a marriage is not solemnized within three calendar months from the date on which notice thereof has been given to the Marriage Officer as required by section 5, or where an appeal has been filed under sub -section ( 2) of section 8, within three months from the date of the decision of the district court on such appeal or, where the record of a case has been transmitted to the Central Government under section 10, within three months from the date of decision of the Central Government, the notice and all other proceedings arising therefrom shall be deemed to have lapsed, and no Marriage Officer shall solemnize the marriage until a new notice has been given in the manner laid down in this Act. CHAPTER III REGISTRATION OF MARRIAGES CELEBR ATED IN OTHER FORMS 15. Registration of marriages celebrated in other forms .Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage solemnized under the Special 1. Subs . by Act 33 of 1969, s . 29, for outside the territories to which this Act extends in respect of an intended marriage outside the said territories (w.e.f. 31 -8-1969). 8 Marriage Act, 1872 (3 of 1872) , or under this Act , may be registered under this Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled, namely: (a) a ceremony of marriage has been performed between the parties and they have .been living toget her as husband and wife ever since; (b) neither party has at the time of registration more than one spouse living; (c) neither party is an idiot or a lunatic at the time of registration; (d) the parties have completed the age of twenty -one years at the tim e of registration; (e) the parties are not within the degrees of prohibited relationship: Provided that in the case of a marriage celebrated before the commencement of this Act, this condition shall be subject to any law, custom or usage having the force o f law governing each of them which permits of a marriage between the two; and (f) the parties have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the date on which the application i s made to him for registration of the marriage. 16. Procedure for registration .Upon receipt of an application signed by both the parties to the marriage for the registration of their marriage under this Chapter the Marriage Officer shall give public notice thereof in such manner as may be prescribed and after allowing a period of th irty days for objections and after hearing any objection received within that period, shall, if satisfied that all the conditions mentioned in section 15 are fulfilled, enter a certificate of the marriage in the Marriage Certificate Book in the form specif ied in the Fifth Schedule, and such certificate shall be signed by the parties to the marriage and by three witnesses. 17. Appeals from orders under section 16 .Any person aggrieved by any order of a Marriage Officer refusing to register a marriage under this Chapter may, within thirty days from the date of the order, appeal against that order to the district court within the local limits of whose jurisdiction th e Marriage Officer has his office, and the decision of the district court on such appeal shall be final, and the Marriage Officer to whom the application was made shall act in conformity with such decision. 18. Effect of registration of marriage under this Chapter .Subject to the provisions contained in sub-section ( 2) of section 24, where a certificate of marriage has been finally entered in the Marriage Certificate Book under this Chapter, the marriage shall, as from the date of such entry, be deemed to be a marri age solemnized under this Act, and all children born after the date of the ceremony of marriage (whose names shall also be entered in the Marriage Certificate Book) shall in all respects be deemed to be and always to have been the legitimate children of th eir parents: Provided that nothing contained in this section shall be construed as conferring upon any such children any rights in or to the property of any person other than their parents in any case where, but for the passing of this Act, such children w ould have been incapable of possessing or acquiring any such rights by reason of their not being the legitimate children of their parents. CHAPTER IV CONSEQUENCES OF MARRIAGE UNDER THIS ACT 19. Effect of marriage on member of undivided family .The marriage solemnized under this Act of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jaina religions shall be deemed to effect his severance from such family. 20. Rights and disabilities not affected by Act .Subject to the provisions of section 19, any person whose marriage is solemnized under this Act shall have the same rights and shall be subject to the same disabilities in regard to the right of succession to any property as a person to whom the Caste Disabilities Removal Act, 1850 (21 of 1850), applies. 21. Succession to property of parties married under Act .Notwithstanding any restrictions contained in the Indian Succession Act, 1925 (39 of 1925), with respect to its application to members of 9 certain communities, succession to the property or any person whose marriage is solemnized under this Act and to the property of the issue of such marriage shall be regulated by the provisions of the said Act and for the purposes of this Act shall have effect as if Chapter III of Part V (Special Rules for Parsi Intestate s) had been omitted therefrom. 1[21A. Special provi sion in certain cases .Where the marriage is solemnized under this Act of any person who professes the Hindu, Buddhist, Sikh or Jaina religion with a person who professes the Hindu, Buddhist, Sikh or Jaina religion, section 19 and section 21 shall not apply and so much of sect ion 20 as creates a disability shall also not apply.] CHAPTER V RESTITUTION OF CONJUGAL RIGHTS AND JUDICIAL SEPARATION 22. Restitution of conjugal rights .When either the husband or the wife has, without reasonable excuse, withdrawn from the society of th e other, the aggrieved party may apply by petition to the district court for restitution of conjugal rights, and the court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application shoul d not be granted, may decree restitution of conjugal rights accordingly. 2[Explanation .Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of prov iding reasonable excuse shall be on the person who has withdrawn from the society.] 23. Judicial separation .(1) A petition for judicial s eparation may be presented to the district court either by the husband or the wife, (a) on any of the grounds specified 3[in sub -section ( 1) 4[and sub -section ( 1A)] of section 27 ] on which a petition for divorce might have been presented; or (b) on the gr ound of failure to comply with a decree for restitution of conjugal rights; and the court, on being satisfied of the truth of the statements made in such petition , and that there is no legal ground why the application should not be granted, may decree judi cial separation accordingly. (2) Where the court grants a decree for judicial separation, it shall be no longer obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being sat isfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so. CHAPTER VI NULLITY OF MARRIAGE AND DIVORCE 24. Void marriages .(1) Any marriage solemnized under this Act shall be null and vo id 5[and may, on a petition presented by either party thereto against the other party, be so declared] by a decree of nullity if (i) any of the conditions specified in clauses ( a), (b), (c) and ( d) of section 4 has not been fulfilled; or (ii) the responde nt was impotent at the time of the marriage and at the time of the institution of the suit. (2) Nothing contained in this section shall apply to any marriage deemed to be solemnized under this Act within the meaning of section 18, but the registration of a ny such marriage under Chapter III may be declared to be of no effect if the registration was in contravention of any of the conditions specified in clauses ( a) to ( e) of section 15: 1. Ins . by Act 68 of 1976, s . 22 (w.e.f. 27 -5-1976). 2. Added by s. 23, ibid. 3. Subs. by Act 2 9 of 1970, s. 2, for certain words (w.e.f. 12 -8-1970). 4. Ins. by Act 68 of 1976, s. 24 (w.e.f. 27 -5-1976). 5. Subs. by s. 25, ibid., for and may be so declared (w.e.f. 27 -5-1976). 10 Provided that no such declaration shall be ma de in any case where an appe al has been preferred under section 17 and the decision of the district court has become final. 25. Voidable marriages .Any marriage solemnized under this Act shall be voidable and may be annulled by a decree of nullity if, (i) the marriage has not been c onsummated owing to the wilful refusal of the respondent to consummate the marriage; or (ii) the respondent was at the time of the marriage pregnant by some person other than the petitioner; or (iii) the consent of either party to the marriage was obtained by coercion or fraud, as defined in the Indian Contract Act, 1872 (9 of 1872): Provided that, in the case specified in clause ( ii), the court shall not grant a decree unless it is satisfied, (a) that the petitioner was at the time of the marriage ignorant of the facts alleged; (b) that proceedings were instituted within a year from the date of the marriage; and (c) that marital intercourse with the consent of the petitioner has not taken pla ce since the discovery by the petitioner of the existence of the grounds for a decree: Provided further that in the case specified in clause ( iii), the court shall not grant a decree if, (a) proceedings have not been instituted within one year after the c oercion had ceased or, as the case may be, the fraud had been discovered; or (b) the petitioner has with his or her free consent lived with the other party to the marriage as husband and wife after the coercion had ceased or, as the case may be, the fraud had been discovered. 1[26. Legitimacy of children of void and voidable marriages .(1) Notwithstanding that a marriage is null and void under section 24, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marria ge Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act. (2) Where a decree of n ullity is granted in respect of a voidable marriage under section 25, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it has been dissolved inst ead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity. (3) Nothing contained in sub -section ( 1) or sub -section ( 2) shall be construed as conferring upon any child of a marriage which is null and void or w hich is annulled by a decree of nullity under section 25, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such r ights by reason of not his being the legitimate child of his parents.] 27. Divorce .2[(1)] Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court either by the husband or the w ife on the ground that the respondent 3[(a) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or] 1. Subs. by Act 68 of 1976, s. 26, for section 26 (w.e.f. 27 -5-1976). 2. Section 27 renumbered as sub -section ( 1) thereof by Act 29 of 1970, s. 3 (w.e.f. 12 -8-1970). 3. Subs. by Act 68 of 1976, s. 27, for clauses ( a) and ( b). 11 (c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860); 1* * * * * (d) has since the sole mnization of the marriage treated the petitioner with cruelty; or 2[(e) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation .In this clause, (a) the expression mental disorder means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes sc hizophrenia; (b) the expression psychopathic disorder means a persistent disorder or disability of mind (whether or not including sub -normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the respondent, and whether or not it requires or is susceptible to medical treatment; or (f) has been suffering from venereal disease in a communicable form; or ] 3* * * * * (h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; 4* * * 5[Explanation .In this sub -section, the expression desertion means
the respondent had been alive; 4* * * 5[Explanation .In this sub -section, the expression desertion means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly;] 6* * * * * 7* * * * * 8[(1A) A wife may also present a petition for divorce to the district court on the ground, (i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; (ii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898) (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithst anding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards.] 1. The Proviso omitted by Act 68 of 1976 , s. 27 (w.e.f. 27 -5-1976). 2. Subs. by s. 27, ibid., for c lauses ( e) and ( f) (w.e.f. 27 -5-1976). 3. Clause ( g) omitted by Act 6 of 2019, s. 4 (w.e.f. 1 -3-2019). 4. The word or omitted by Act 29 of 1970, s. 3 (w.e.f. 12 -8-1970). 5. Ins. by Act 68 of 1976, s. 27 (w.e.f. 27 -5-1976). 6. The words and by the wife on the ground that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality omitted by s. 27 , ibid. (w.e.f. 27 -5-1976). 7. Omitted by Act 29 of 1970), s. 3 (w.e.f. 12 -8-1970). 8. Ins. by Act 68 of 1976, s. 27 (w.e.f. 27 -5-1976). 12 1[(2) Subject to the provisions of this Act and to the rules made thereunder, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage (Amendment) Act, 1970 (29 of 1970), may present a petition for divorce to the district court on the ground (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or (ii) that there has been no restitution of conjugal rights as between the parties t o the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.] 2[27A. Alternative relief in divorce proceedings .In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except insofar as the petition is founded on the ground mentioned in clause ( h) of sub -section ( 1) of section 27, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.] 28. Divorce by mutual consent .(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to th e district court by both the parties together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (2) 3[On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub -section ( 1) and not later than eighteen months] after the said date, if the petition is not withdrawn in the meantime , the district court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act, and that the averments in the petition are true, pass a decree declaring the marri age to be dissolved with effect from the date of the decree. 29. Restriction on petitions for divorce during first one year after marriage .(1) No petition for divorce shall be presented to the district court 4[unless at the date of the presentation of the petition one year has passed] since the date of entering the certificate of marriage in the Marriage Certificate Book: Provided that the d istrict court may, upon application being made to it, allow a petition to be presented 5[before one year has passed] on the ground that the case is one of exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respon dent, but if it appears to the district court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the district court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the 6[expiry of one year] from the date of the marriage or may dismiss the petition, without prejudice to any petition, which may be brought after the 7[expiration of the said one year] upon the same, or substantially the same, facts as those proved in support of the petition so dismissed. (2) In disposing of any application under this section for leave to present a petition for divorce before the 8[expiration of one year] from the date of the marriage, the district court shall have regard to the interests of any children of the marriage, and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the 9[said one y ear]. 30. Remarriage of divorced persons .Where a marriage has been dissolved by a decree of divorce , and either there is no right of appeal against the decree or if there is such a right of appeal, the time for 1. Ins. by Act 29 of 1970, s. 3 (w.e.f. 12-8-1970). 2. Ins. by Act 68 of 1976, s. 28 (w.e.f. 27 -5-1976). 3. Subs. by s. 29, ibid., for On the motion of both the parties made not earlier than one year after the date of the presentatio n of the petition referred to in sub -section ( 1) and not later than two years (w.e.f. 27 -5-1976). 4. Subs. by s. 30, ibid., for unless at the date of the presentation of the petition three years have passed (w.e.f. 27 -5-1976). 5. Subs. by s. 30, ibid., for before three years have passed (w.e.f. 27 -5-1976). 6. Subs. by s. 30, ibid., for expiry of three years (w.e.f. 27 -5-1976). 7. Subs. by s. 30, ibid., for expiration of the said three years (w.e.f. 27 -5-1976). 8. Subs . by s. 30, ibid.,for expir ation of the three years (w.e.f. 27 -5-1976). 9. Subs . by s. 30, ibid., for said three years (w.e.f. 27 -5-1976). 13 appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed 1* * * either party to the marriage may marry again. CHAPTER VII JURISDICTION AND PRO CEDURE 31. Court to which petition should be made .2[(1) Every petition under Chapter V or Chapter VI shall be presented to the district court within the local limits of whose original civil jurisdiction -- (i) the marriage was solemnized; or (ii) the respondent, at the time of the presentation of the petition resides; or (iii) the parties to the marriage last resided together; or 3[(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition; or] (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is at that time residing outside the t erritories to which this Act extends, or has not been heard of as being alive for a period of seven years by those who would naturally have heard of him if he were alive.] (2) Without prejudice to any jurisdiction exercisable by the court under sub -section (1), the district court may, by virtue of this sub -section, entertain a petition by a wife domiciled in the territories to which this Act extends for nullity of marriage or for divorce if she is resident in the said territories and has been ordinarily res ident therein for a period of three years immediately preceding the presentation of the petition and the husband is not resident in the said territories. 32. Contents and verification of petitions .(1) Every petition under Chapter V or Chapter VI shall state, as distinctly as the nature of the case permits the facts on which the claim to relief is founded, and shall also state that there is no collusion between, the petitioner and the other party to the marriage. (2) The statements contained in every such p etition shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing, be referred to as evidence. 4[33. Proceedings to be in camera and may not be printed or publ ished.(1) Every proceeding under this Act shall be conducted in camera and it shall not be lawful for any person to print or publish any matter in relation to any such proceeding except a judgment of the High Court or of the Supreme Court printed or publi shed with the previous permission of the Court. (2) If any person prints or publishes any matter in contravention of the provisions contained in sub-section ( 1), he shall be punishable with fine which may e xtend to one thousand rupees.] 34. Duty of court in passing decrees .(1) In any proceeding under Chapter V or Chapter VI, whether defended or not, if the court is satisfied that, (a) any of the grounds for granting relief exists; and (b) 5[where the petition is founded on the ground specified in clause ( a) of sub -section (1) of section 27, the petitioner has not in any manner been accessory to or connived at or condoned the act of sexual intercourse referred to therein], or, where the ground of the petition is cruelty, the petitioner has not in any manner condoned the cru elty; and (c) when divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence; and 1. The words and one year has elapsed thereafter but not sooner omitted by Act 68 of 1976, s. 31, (w.e.f. 27 -5-1976). 2. Subs . by s. 32, ibid., for sub -section ( 1) (w.e.f. 27 -5-1976). 3. Ins. by Act 50 of 2003, s. 2 (w.e.f. 23 -12-2003). 4. Subs . by Act 68 of 1976, s. 33, for section 33 (w.e.f. 27 -5-1976). 5. Subs . by s. 34, ibid. for where the ground of the petition is adultery, the p etitioner has not in any manner been accessory to or connived at or condoned the adultery (w.e.f. 27 -5-1976). 14 (d) the petition is not presented or prosecuted in collusion with the respondent; and (e) there has not been an y unnecessary or improper delay in instituting the proceedings; and (f) there is no other legal ground why the relief should not be granted; then, and in such a case, but not otherwise, the court shall decree such relief accordingly. (2) Before proceeding to grant any relief under this Act it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation bet ween the parties: 1[Provided that nothing contained in this sub -section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause ( c), clause ( e), clause ( f), clause ( g) and clause ( h) of sub - section ( 1) of section 27 .] 2[(3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and r efer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been, effected and the cour t shall in disposing of the proceeding have due regard to the report. (4) In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.] 3[35. Relief for res pondent in divorce and other proceedings .In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner s adultery, cruelty or desertion, but also ma ke a counter -claim for any relief under this Act on that ground, and if the petitioner s adultery, cruelty or desertion is proved, the court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had p resented a petition seeking such relief on that ground.] 36. Alimony pendente lit e.Where in
she had p resented a petition seeking such relief on that ground.] 36. Alimony pendente lit e.Where in any proceeding under Chapter V or Chapter VI it appears to the district court that the wife has no independent income sufficient for her support and the necessary expenses of the proceeding, it may, on the application of the wife, order the husba nd to pay to her the expenses of the proceeding, and weekly or monthly during the proceeding such sum as having regard to the husband s income, it may seem to the court to be reasonable. 4[Provided that the application for the payment of the expenses of t he proceeding and such weekly or monthly sum during the proceeding under Chapter V or Chapter VI, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the husband.] 37. Permanent alimony and maintenance .(1) Any court exercising jurisdiction under Chapter V or Chapter VI may, at the time of passing any decree or at any time subsequent to the decree, on application made to it for the purpose, order that the husband shall secure to the wife for her maintena nce and support, if necessary, by a charge on the husband s property such gross sum or such monthly or periodical payment of money for a term not exceeding her life, as, having regard to her own property, if any, her husband s property and ability 5[the co nduct of the parties and other circumstances of the case], it may seem to the court to be just. (2) If the district court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub -section ( 1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as it may seem to the court to be just. 1. Added by Act 68 of 1976, s. 34 (w.e.f. 27 -5-1976). 2. Ins. by s. 34, ibid. (w.e.f. 27 -5-1976). 3. Subs. by s. 35, ibid., for section 35 (w.e .f. 27 -5-1976). 4. Ins. by Act 49 of 2001, s. 6 (w.e.f. 24 -9-2001). 5. Subs. by Act 68 of 1976, s. 36, for and the conduct of the parties (w.e.f. 27 -5-1976). 15 (3) If the district court is satisfied that the wife in whose favour an order has been made under this section has re married or is not leading a chaste life, 1[it may, at the instance of the husband vary, modify or rescind any such order and in such manner as the court may deem just.] 38. Custody of children .In any proceeding under Chapter V or Chapter VI the district court may, from time to time, pass such interim orders and make such provisions in the decree as it may seem to it to be just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes wherever possible, and may, after the decree, upon application by petition for the purpose, make, revoke, suspend or vary, from time to time, all such orders and provisions with respect to the custody, mainte nance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending. 2[Provided that the application with respect to the maintenance and education of the minor ch ildren, during the proceeding, under Chapter V or Chapter VI, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.] 3[39. Appeals from decrees and orders .(1) All decrees made by the court in any proceeding under Chapter V or Chapter VI shall, subject to the provisions of sub -section ( 3), be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction. (2) Orders made by the court in any proceeding under this Act, under section 37 or section 38 shall, subject to the provisions of sub -section ( 3), be appealable if they are not interim orders, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original jurisdiction. (3) There shall be no appeal under this section on the subject of costs only. (4) Every appeal under this section shall be preferred within a 4[period of ninety days] from the date of the decree or order. 39A. Enforcement of decrees and orders .All decrees and orders made by the court in any proceeding under Chapter V or Chapter VI shall be enforced in the like manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction for the time being are enforced.] 40. Application of Act 5 of 1908 .Subject to the other provisions contained in this Act, and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908 (5 of 1908). 5[40A. Power to transfer petitions in certain cases .(1) Where (a) a petition under this Act has been presented to the district court having jurisdiction, by a party to the marriage praying for a decree for judicial separation under section 23 or for a decree of divorce under section 27, and (b) another petition under this Act has been presented thereafter by the other party to the marriage praying for decree for judicial separation under section 23, or for decree of divorce under section 27 on any ground whether in the same district court, or in a different district court, in the same State or in a different State, the petition shall be dealt with as specified in sub -section ( 2). (2) In a case where sub -section ( 1) applies, (a) if the petitions are presented to the same district court, both the petitions shall be tried and heard together by that district court; 1. Subs. by Act 68 of 1976, s. 36, for it shall rescind the order (w.e.f. 27 -5-1976). 2. The proviso i ns. by Act 49 of 2001, s. 7 (w.e.f. 24 -9-2001). 3. Subs. by Act 68 of 1976, s. 37, for section 39 (w.e.f. 27 -5-1976) . 4. Subs. by Act 50 of 2003, s. 3, for period of thirty days (w.e.f. 23 -12-2003). 5. Ins. by Act 68 of 1976, s. 38 (w.e.f. 27-5-1976). 16 (b) if the petitions are presented to different district courts, the petitions presented later shall be transferre d to the district court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district court in which the earlier petition was presented. (3) In a case where clause ( b) of sub -section ( 2) applies, the court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908), to transfer any suit or proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code. 40B. Special provisions relating to trial and disposal of petitions under the Act .(1) The trial of a petition u nder this Act shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day, until its conclusions, unless the court finds the adjournment of the trial beyond the following day to be necess ary for reasons to be recorded. (2) Every petition under this Act shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date of service of notice of the petition on the respondent. (3) Ever y appeal under this Act shall be heard as expeditiously as possible, and endeavour shall be made to conclude the hearing within three months from the date of service of notice of appeal on the respondent. 40C. Documentary evidence .Notwithstanding anything contained in any enactment to the contrary, no document shall be inadmissible in evidence in any proceeding at the trial of a petition under this Act on the ground that it is not duly stamped or registered. ] 41. Power of High Court to make rules regulatin g procedure .(1) The High Court shall, by notification in the Official Gazette, make such rules consistent with the provisions contained in this Act and the Code of Civil Procedure, 1908 (5 of 1908), as it may consider expedient for the purpose of carrying into effect the provisions of Chapters V, VI and VII. (2) In particular, and without prejudice to the generality of the foregoing provision, such rules shall provide for, (a) the impleading by the petitioner of the adulterer as a co -respondent on a petition for divo rce on the ground of adultery, and the circumstances in which the petitioner may be execused from doing so; (b) the awarding of damages against any such co -respondent ; (c) the intervention in any proceeding under Chapter V or Chapter VI by any person not a lready a party thereto; (d) the form and contents of petitions for nullity of marriage or for divorce and the payment of costs incurred by parties to such petitions; and (e) any other matter for which no provision or no sufficient provision is made in this Act, and for which provision is made in the Indian Divorce Act, 1869 (4 of 1869). CHAPTER VIII MISCELLANEOUS 42. Saving.Nothing contained in this Act shall affect the validity of any marriage not solemnized under its provisions; nor shall this Act be dee med directly or indirectly to affect the validity of any mode of contracting marriage. 43. Penalty on married person marrying again under this Act .Save as otherwise provided in Chapter III, every person who, being at the time married, procures, a marriage of himself or herself to be solemnized under this Act shall be deemed to have committed an offence under section 494 or section 495 of the Indian Penal Code (45 of 1860), as the case may be, and the marriage so solemnized shall be void. 17 44. Punishment of bigamy .Every person whose marriage is solemnized under this Act and who, during the lifetime of his or her wife or husband, contracts any other marriage shall be subject to the penalties provided in section 494 and section 495 of the Indian Penal Code (45 of 1860), for the offence of marrying again during the lifetime of a husband or wife, and the marriage so contracted shall be void. 45. Penalty for signing false declaration or certificate .Every person making, signing or attesting any declaration or cert ificate required by or under this Act containing a statement which is false and which he either knows or believes to be false or does not believe to be true shall be guilty of the offence described in sectio n 199 of the Indian Penal Code (45 of 1860). 46. Penalty for wrongful action of Marriage Officer .Any Marriage Officer who knowingly and wilfully solemnizes a marriage under this Act, (1) without publishing a notice regarding such marriage as required by section 5, or (2) within thirty days of the publi cation of the notice of such marriage, or (3) in contravention of any other provision in this Act, shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five hundred rupees, or with both. 47. Marriage Certificate Book to be open to inspection .(1) The Marriage Certificate Book kept under this Act shall at all reasonable times be open for inspection and shall be admissible as evidence of the statements therein contained. (2) Certified extracts from the Marriage Certificate Book shall, on application, be given by the Marriage Officer to the applicant on payment by him of the prescribed fee. 48. Transmission of copies of entries in marriage records .Every Marriage Officer in a State shall send to Registrar -General of Births, Deaths and Marriages of that State at such intervals and in such form as may be prescribed, a true copy of all entries made by him in the Marriage Certificate Book since the last of such intervals, and, in the case of Marriage Officers outside the territories to which this Act extends, the true copy shall be sent to such authority as the Central Government may specify in this behalf. 49. Correction of errors .(1) Any Marriage Officer who discovers any error in the form or subst ance of any entry in the Marriage Certificate Book may, within one month next after the discovery of such error, in the presence of the persons married or, in case of their death or absence, in the presence of two other credible witnesses, correct the erro r by entry in the margin without any alteration of the original entry and shall sign the marginal entry and add thereto the date of such correction and the Marriage Officer shall make the like marginal entry in the certificate thereof. (2) Every correction made under this section shall be attested by the witnesses in whose presence it was made. (3) Where a copy of any entry has already been sent under section 48 to the Registrar -General or other authority the Marriage Officer shall make and send in like man ner a separate certificate of the original erroneous entry and of the marginal corrections therein made. 50. Power to make rules .(1) The Central Government, in the case of 1* * * officers of the Central Government, and the State Government, in all other cases, may, by notificatio n in the Official Gazette, make rules for carrying out the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, na mely: (a) the duties and powers of Marriage Officers and the areas in which they may exercise jurisdiction; 1. The words diplomatic and consular officers and other omitted by Act 33 of 1969, s. 29 (w.e.f. 31 -8-1969). 18 (b) the manner in which a Marriage Officer may hold inquiries under this Act and the procedure therefor; (c) the form and manner in which any books required by or under this Act shall be maintained; (d
therefor; (c) the form and manner in which any books required by or under this Act shall be maintained; (d) the fees that may be levied for the performance of any duty imposed upon a Marriage Officer under this Act; (e) the manner in which public notice shall be given under section 16; (f) the form in which , and the intervals within which, copies of entries in the Marriage Certificate Book shall be sent in pursuance of section 48; (g) any other matter which may be or requires to be prescribed. 1[(3) Every rule made by the Central Government under this Act sh all be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the sessio n immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule. (4) Every rule made by the State Government under this Act shall be laid, as soo n as it is made before the State Legislature.] 51. Repeals and savings .(1) The Special Marriage Act, 1872 (3 of 1872), and any law corresponding to the Special Marriage Act, 1872 (3 of 1872), in force in any Part B State immediately before the commenceme nt of this Act are hereby repealed. (2) Notwithstanding such repeal, (a) all marriages duly solemnized under the Special Marriage Act, 1872 (3 of 1872), or any such corresponding law shall be deemed to have been solemnized under this Act; (b) all suits an d proceedings in causes and matters matrimonial which, when this Act comes into operation, are pending in any court, shall be dealt with and decided by such court, so far as may be, as if they had been originally instituted therein under this Act. (3) The provisions of sub -section ( 2) shall be without prejudice to the provisions contained in section 6 of the General Clauses Act, 1897 (10 of 1897), which shall also apply to the repeal of the corresponding law as if such corresponding law had been an enactmen t. 1. Ins . by Act 20 of 1983, s. 2 and the Schedule (w.e.f. 15.3.1984). 19 THE FIRST SCHEDULE [See section 2( b) Degrees of prohibited relationship ] PART I 1. Mother. 2. Father s widow (step -mother). 3. Mother s mother. 4. Mother s father s widow (step grand -mother). 5. Mother s mother s mother. 6. Mother s mother s father s widow (step great grand -mother). 7. Mother s father s mother. 8. Mother s father s father s widow (step great grand -mother). 9. Father s mother. 10. Father s father s widow (step -grand mother). 11. Father s mother s mother. 12. Father s mother s father s widow (step great grand -mother). 13. Father s father s mother. 14. Father s father s father s widow (step great grand -mother). 15. Daughter. 16. Son s widow. 17. Daughter s daughter. 18. Daughter s son s widow. 19. Son s daughter. 20. Son s son s widow. 21. Daughter s daughter s daughter. 22. Daughter s daughter s son s widow. 23. Daughter s son s daughter. 24. Daughter s son s son s widow. 25. Son s daughter s daughter. 26. Son s daughter s son s widow. 27. Son s son s daughter. 28. Son s son s sons widow. 29. Sister. 30. Sister s daughter. 31. Brother s daughter. 32. Mother s sister. 33. Father s sister. 34. Father s brother s daughter. 20 35. Father s sister s daughter. 36. Mother s sister s daughter. 37. Mother s brother s daughter. Explanation .For the purposes of this Part, the expression widow includes a divorced wife. PART II 1. Father. 2. Mother s husband (step -father). 3. Father s father. 4. Father s mother s husband (step grand -father). 5. Father s father s father. 6. Father s father s mot hers husband (step great grand -father). 7. Father s mother s father. 8. Father s mother s mother s husband (step great grand -father). 9. Mother s father. 10. Mother s mother s husband (step grand -father). 11. Mother s father s father. 12. Mother s father s mother s husband (step great grand -father). 13. Mother s mother s father. 14. Mother s mother s mother s husband (step great grand -father). 15. Son. 16. Daughter s husband. 17. Son s son. 18. Son s daughter s husband. 19. Daughter s son. 20. Daughter s daughter s husband. 21. Son s son s son. 22. Son s son s daughter s husband. 23. Son s daughter s son. 24. Sen s daughter s daughter s husband. 25. Daughter s son s son. 26. Daughter s son s daughter s husband. 27. Daughter s daughter s son. 28. Daughter s daughter s daughter s husband. 29. Brother. 30. Brother s son. 31. Sister s son. 32. Mother s brother. 21 33. Father s brother. 34. Father s brother s son. 35. Father s sister s son. 36. Mother s sister s son. 37. Mother s brother s son. Explanation .For the purposes of this part, the expression husband includes a divorced husband. 22 THE SECOND SCHEDULE (See section 5) NOTICE OF INTENDED MARRIAGE To Marriage Officer for the .......................... .............................................. .District . We hereby give you notice that a marriage under the Special Marriage Act, 1954, is intended to be solemnized between us within three calendar months from the date hereof. Name Condition Occupation Age Dwelling place Permanent place dwelling if pres ent dwelling place not permanent Length of residence A.B. Unmarried Widower Divorcee C.D. Unmarried Widow Divorcee Witness our hands this .................... ................ day of................ ................ ........... 20...... (Sd.) A.B., (Sd.) C.D., 23 THE THIRD SCHEDULE (See section 11) DECLARATION TO BE MADE BY THE BRIDEGROOM I, A.B., hereby declare as follows: 1. I am at the present time unmarried (or a widower or a divorcee, as the case may be). 2. I have completed .....years of age. 3. I am not related to C.D. (the bride) within the degrees of prohibited relationship. 4. I am aware that, if any statement in this declaration is false, and if in making such statement I either know or believe it t o be false or do not believe it to be true, I am liable to imprisonment and also to fine. (Sd.) A.B. (the Bridegroom) . DECLARATION TO BE MADE BY THE BRIDE I, C.D., hereby declare as follows: 1. I am at the present time unmarried (or a widow or a divorcee, as the case may be). 2. I have completed ....years of age. 3. I am not related to A.B. (the Bridegroom) within the degree s of prohibited relationship. 4. I am aware that, if any statement in this declaration is false, and if in making such statement I either know or believe it to be false or do not believe it to be true, I am liable to imprisonment and also to fine. (Sd.) C.D. (the Bride) Signed in our presence by the above -named A.B. and C.D. So far as we are aware there is no lawful impediment to the mar riage. (Sd.) G.H. (Sd.) I.J. Three witnesses . (Sd.) K.L. Countersigned E.F., Marriage Officer Dated the day of 20 24 THE FOURTH SCHEDULE (See section 13) CERTIFICATE OF MARRIAGE I, E.F., hereby certify that on the .day of 20.. ,A.B. and C.D* appeared before me and that each of them, in my presence and i n the presence of three witnesses who have signed hereunder, made the declarations required by section 11 and that a marriage under this Act was solemnized between them in my presence. (Sd.) E.F., Marriage Officer for (Sd.) A.B., Bridegroom (Sd.) C.D., Bride . (Sd.) G.H. (Sd.) I.J. Three witnesses (Sd.) K.L. Dated the day of 20 _______________________ * Herein give particulars of the parties. 25 THE FIFTH SCHEDULE (See section 16) CERTIFICATE OF MARRIAGE CELEBRATED IN OTHER FORMS I, E.F., hereby certify that A.B. and CD.* appeared before me this day of . 20 and that each of them, in my presence and in the presence of three witnesses who have signed hereunder have declared that a ceremony of marriage has been performed between them and that they have been living together as husband and wife since the time of their marriage, and that in accordance with their desire to have their marriage registered under this Act, the said marriage has, this day of 20..................... been registered under this Act, having effect as from. (Sd.) E. F., Marriage Officer for (Sd.) A.B., Husband . (Sd.) C.D. Wife. (Sd.) G.H. (Sd.) IJ. Three witnesse s. (Sd.) K.L. Dated the day of 20. _______________________ * Herein give particulars of the parties.
THE PASSPORTS ACT, 1967 ACT NO. 15 OF 1967 [24th June , 1967.] An Act to provide for the issue of passports a nd travel documents , to regulate the departure from India of citizens of India and other persons and for matters incidental or ancillary thereto. BE it enacted by Parliament in the Eighteenth Year of the Republic of India as follow: 1. Short title and extent. (1) This Act may be called the Passports Act, 1967. (2) It extends to the whole of India and applies also to citizens of India who are outside India. 2. Definitions. In this Act, unless the context otherwise requires, (a) departure , with its grammatical variations and cognate expressions, means departure from India by water, land or air; (b) passport means a passport issued or deemed to have been issued under this Act; (c) passport authority means an officer or authority empowered under rules made under this Act to issue passports or travel documents and includes the Central Government; (d) prescribed means prescribed by rules made under this Act; (e) travel document means a travel document issued or deemed to have been issued under this Act. 3. Passport or travel document for departure from India. No person shall depart from, or attempt to depart from India unless he holds in this behalf a valid passport or travel document. Explanation. For the purposes of this section, (a) passport includes a passport which having been issued by or under the authority of the Government of a foreign country satisfies the conditions prescribed under the Passport (Entry into India) Act, 1920 (34 of 1920) , in respect of the class of passports to which it belongs; (b) travel document includes a travel document which having been issued by or under the authority of the Government of a foreign country satisfies the conditions prescribed. 4. Classes of passports and travel documents. (1) The following classes of passports may be issued under this Act, namely: (a) ordinary passport; (b) Official passport; (c) diplomatic passport. (2) The following classes of travel documents may be issued under this Act, namely: (a) emergency certific ate authorising a person to enter India; (b) certificate of identity for the purpose of establishing the identity of a person; (c) such other certificate or document as may be prescribed. (3) The Central Government shall, in consonance with the usage an d practice followed by it in this behalf, prescribe the classes of persons to whom the classes of passports and travel documents referred to respectively in sub -section ( 1) and sub -section ( 2) may be issued under this Act. 5. Applications for passports, tr avel docu ments, etc, and orders thereon. 1[(1) An application for the issue of a passport under this Act for visiting such foreign country or countries (not being a named foreign country) as may be specified in the application may be made to the passport authority and shall be 1. Subs. by Act 31 of 1978, s. 2, for sub -section ( 1) (w.e.f. 18 -8-1978). 3 accompanied by 1[such fee as may be prescribed to meet the expenses incurred on special security paper, printing, lamination and other connected miscellaneous services in issuing passports and other travel documents] . Explanation. In this section, named foreign country means such foreign country as the Central Government may, by rules made under this Act, specify in this behalf. (1A) An application for the issue of (i) a passport under this Act for visiting a named foreign country; or (ii) a travel document under this Act, for visiting such foreign country or countries (including a named foreign country) as may be specified in the application or for an endorsement on the passport or travel document referred to in this section, may be made to the passport authority and shall be accompanied by such fee (if any) not exceeding rupees fifty, as may be prescribed. (1B) Every application under this section shall be in such form and contain such particulars as may be prescribed.] (2) On recei pt of an application 2[under this section] , the passport authority, after making such inquiry, if any, as it may consider necessary, shall, subject to the other provisions of this Act, by order in writing, (a) issue the passport or travel document with endorsement ,or, as the case may be, make on the passport or travel document the endorsement, in respect of the foreign country or countries specified in the application; or (b) issue the passport or travel doc ument with endorsement, or, as the case may be, make on the passport or travel document the endorsement, in respect of one or more of the foreign countries specified in the application and refuse to make an endorsement in respect of the other country or countries; or (c) refuse to issue the passport or travel document or, as the case may be, refuse to make on the passport or travel document any endorsement. (3) Where the passport authority makes an order under clause ( b) or clause ( c) of sub -section ( 2) on the application of any person, it shall record in writing a brief statement of its reasons for making such order and furnish to that person on demand a copy of the same unless in any case the passport authority is of the opinion that it will not be in th e interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country or in the interests of the general public to furnish such copy. 6. Refusal of passports, travel documents, etc. (1) Subject t o the other provisions of this Act, the passport authority shall refuse to make an endorsement for visiting any foreign country under clause (b) or clause ( c) of sub -section ( 2) of section 5 on any one or more of the following grounds, and on no other ground, namely: (a) that the applicant may, or is likely to, engage in such country in activities prejudicial to the sovereignty and integrity of India; (b) that the presence of the applicant in such country may, or is likely to, be detrimental to the security of India; (c) that the presence of the applicant in such country may, or is likely to, prejudice the friendly relations of India with that or any other country; 1. Subs. by Act 35 of 1993, s. 2 , for a fee of rupees fifty (w.e.f. 1 -7-1993). 2. Ins. by Act 31 of 1978 s. 2 (w.e.f. 18 -8-1978). 4 (d) that in the opinion of the Central Government the presence of the applicant in such country is not in the public interest. (2) Subject to the other provisions of this Act, the passport authority shall refuse to issue a passport or travel document for visiting any foreign country under clause ( c) of sub -section ( 2) of section 5 on any one or more of the following grounds, and on no other ground, namely : (a) that the applicant is not a citizen of India; (b) that the applicant may, or is likely to, engage outside India in activities prejudicial to the sovereignty and integrity of I ndia; (c) that the departure of the applicant from India may, or is likely to, be detrimental to the security of India; (d) that the presence of the applicant outside India may, or is likely to, prejudice the friendly relations of India with any foreign country; (e) that the applicant has, at any time during the period of five years immediat ely preceding the date of his application, been convicted by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonme nt for not less than two years; (f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India; (g) that a warrant or summons for the appearance, or a warrant for the arrest, of the applicant has been issued by a court under any law for the time being in force or that an order prohibiting the departure from India of the applicant has been made by any s uch court; (h) that the applicant has been repatriated and has not reimbursed the expenditure incurred in connection with such repatriation; (i) that in the opinion of the Central Government the issue of a passport or travel document to the applicant wil l not be in the public interest. 7. Duration of passports and travel documents. A passport or travel document shall, unless revoked earlier, continue in force for such period as may be prescribed and different periods may be prescribed for different classe s of passports or travel documents or for different categories of passports or travel documents under each such class: Provided that a passport or travel document may be issued for a shorter period than the prescribed period (a) if the person b y whom it is required so desires; or (b) if the passport authority, for reasons to be communicated in writing to the applicant, considers in any case that the passport or travel document should be issued for a shorter period. 1[8. Extension of period of Passport. Where a passport is issued for a shorter period than the prescribed period under section 7, such shorter period shall, unless the passport authority for reasons to be recorded in writing otherwise determines, be extendable for a further period (w hich together with the shorter period shall not exceed the prescribed period) and the provisions of this Act shall apply to such extension as they apply to the issue thereof.] 9. Conditions and forms of passports and travel documents .The conditions subjec t to which, and the form in which, a passport or travel document shall be issued or renewed shall be such as may be prescribed: Provided that different conditions and different forms may be prescribed for different classes of passports or travel documents or for different categories of passports or travel documents under each such class: 1. Subs. by Act 35 of 1993, s. 3 , for section 8 (w.e.f. 1 -7-1993). 5 Provided further that a passport or travel document may contain in addition to the prescribed conditions such other conditions as the passport authority may, with the pre vious approval of the Central Government, impose in any particular case. 10. Variation, impounding and revocation of passports and travel documents. (1) The passport authority may, having regard to the provisions of sub -section ( 1) of section 6 or any noti fication under section 19, vary or cancel the endorsements on a passport or travel document or may, with the previous approval of the Central Government, vary or cancel the conditions (other than the prescribed conditions) subject to which a passport or tr avel document has been issued and may, for that purpose, require the holder of a passport or a travel document, by notice in writing, to deliver up the passport or travel document to it within such time as may be specified in the notice and the holder shal l comply with such notice. (2) The passport authority may, on the application of the holder of a passport or a travel document, and with the previous approval of the Central Government also vary or cancel the conditions (other than the prescr ibed conditions) of the passport or travel document. (3) The passport authority may impound or cause to be impounded or revoke a passport or travel document, (a) if the passport authority is satisfied that the holder of the passport or travel document is in wrongful possession thereof; (b) if the passport or travel document was obtained by the suppression of material information or on the basis of wrong informat ion provided by the holder of the passport or travel document or an y other person on his behalf : 1[Provided that if the holder of such passport obtains another passport, the passport authority shall also impound or cause to be impounded or revoke such oth er passport.] (c) if the passport authority deems it necessary so to do in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public; (d) if the holder of the passport or travel document has, at any time after the issue of the passport or travel document, been convicted by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not le ss than two years; (e) if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India; (f) if any of the conditions of the passport or travel document h as been contravened; (g) if the holder of the passport or travel document has failed to comply with a notice under sub-section ( 1) requiring him to deliver up the same; (h) if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport or travel document has been issued by a court under any law for the time being in force or i f an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made. (4) The passport authority may also revoke a passport or travel document on the application of the holder thereof. (5) Where the passport authority makes an order varying or cancelling the endorsements on, or varying the conditions of, a passport or travel document under sub -section ( 1) or an order impounding or revoking a passport or travel document under sub -section ( 3), it shall record in writing a brief statement of the reasons for making such order and furnish to the holder of the passport or travel doc ument on 1. The proviso i ns. by Act 35 of 1993, s. 4 (w.e.f. 1 -7-1993). 6 demand a copy of the same unless in any case, the passport authority is of the opinion that it will not be in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country or i n the interests of the general public to furnish such a copy. (6) The authority to whom the passport authority is subordinate may, by order in writing, impound or cause to be impounded or revoke a passport or travel document on any ground on which it may be impounded or revoked by the passport authority and the foregoing provisions of this section shall, as far as may be, apply in relation to the impounding or revocation of a passport or travel document by such authority. (7) A court convicting the holder of a passport or travel document of any offence under this Act or the rules made thereunder may also revoke the passport or travel document: Provided that if the conviction is set aside on appeal or otherwise the revocation shall become void. (8) An orde r of revocation under
that if the conviction is set aside on appeal or otherwise the revocation shall become void. (8) An orde r of revocation under sub -section ( 7) may also be made by an appellate court or by the High Court when exercising its powers of revision. (9) On the revocation of a passport or travel document under this section the holder thereof shall, without delay, su rrender the passport or travel document, if the same has not already been impounded, to the authority by whom it has been revoked or to such other authority as may be specified in this behalf in the order of revocation. 1[10A. Suspension of passports or tr avel documents in certain cases. (1) Without prejudice to the generality of the provisions contained in section 10, if the Central Government or any designated officer is satisfied that the passport or travel document is likely to be impounded or caused to be impounded or revoked under clause ( c) of sub -section ( 3) of section 10 and it is necessary in the public interest so to do, it or he may, (a) by order, suspend, with immediate effect, any passport or travel document; (b) pass such other appropriate order which may have the effect of rendering any passport or travel document invalid, for a period not exceeding four weeks: Provided that the Central Government or the designated officer may, if it or he consider s appropriate, extend , by order and for rea sons to be recorded in writing, the said period of four weeks till the proceeding s relating to variation, impounding or revocation of passport or travel document under section 10 are concluded: Provided further that every holder of the passport or travel d ocument, in respect of whom an order under clause ( a) or clause ( b) of this sub -section had been passed, shall be given an opportunity of being heard within a period of not later than eight weeks reckoned from the date of passing of such order and thereupon the Central Government may, if necessary, by order in writing, modify or revoke the order passed under this sub -section. (2) The designated officer shall immediately communicate the order passed under sub -section ( 1), to the concerned authority at an airport or any other point of embarkation or immigration, and to the passport authority. (3) Every authority referred to in sub -section ( 2) shall, immediately on receipt of the order passed under sub -section ( 1), give effect to such order. 10B. Validation of intimation s.Every intimation given by the Central Government or the designated officer, before the commencement of the Passports (Amendment) Act, 2002 (17 of 2002) , to any immigration authority at an airport or any other point of embarkation or immigration, restricting or in any manner prohibiting the departure from India of any holder of the passport or travel document under sub -section (3) of section 10, shall be deemed to be an order under sub - section ( 1) of section 10A and such order shall continue to be in force for a period of three months 1. Ins by Act 17 of 2002, s. 2 (w.e.f. 23 -10-2002). 7 from the date of commencement of the Passports (Amendment) Act, 2002, or the date of giving such intimation, whichever is later. Explanation. For the purposes of sections 10A and 10B, the expression designated officer means such officer or authority designated, by order in writing, as such by the Central Government.] 11. Appeals. (1) Any person aggrieved by an order of the passport authority under clause ( b) or clause ( c) of sub -section ( 2) of section 5 or clause ( b) of the proviso to section 7 or sub -section ( 1), or sub-section ( 3) of section 10 or by an order under sub -section ( 6) of section 10 of the authority to whom the passport authority is subordinate, may prefer an appeal against that order to such authority (hereinafter referred to as the appellate authority) and within such period as may be prescribed: Provided that no appeal shall lie against any order made by the Central Government. (2) No appeal shall be admitted if it is preferred after the expiry of the period prescribed therefor: Provided that an appeal may be admitted after the expiry of the period prescribed therefor if the appellant satisfied the appe llate authority that he had sufficient cause for not preferring the appeal within that period. (3) The period prescribed for an appeal shall be computed in accordance with the provisi ons of the Limitation Act, 1963 (36 of 1963 ), with respect to the computation of the periods of limitation thereunder. (4) Every appeal under this section shall be made by a petition in writing and shall be accompanied by a copy of the statement of the reasons for the order appea led against where such copy has been furnished to the appellant and 1[by such fee as may be prescribed for meeting the expenses that may be incurred in calling for relevant records and for connected services] . (5) In disposing of an appeal, the appellate authority sha ll follow such procedure as may be prescribed: Provided that no appeal shall be disposed of unless the appellant has been given a reasonable opportunity or representing his case. (6) Every order of the appellate authority confirming, modifyi ng or reversing the order appealed against shall be final. 12. Offences and penalties. (1) Whoever (a) contravenes the provisions of section 3; or (b) knowingly furnishes any false information or suppresses any material information with a view to obtain ing a passport or travel document under this Act or without lawful authority alters or attempts to alter or causes to alter the entries made in a passport or travel document; or (c) fails to produce for inspection his passport or travel document (whether issued under this Act or not) when called upon to do so by the prescribed authority; or (d) knowingly uses a passport or travel document issued to another person; or (e) knowingly allows another person to use a passport or travel document issued to him, shall be punishable with imprisonment for a term which may extend t o 2[two years or with fine which may extend to five thousand rupees ] or with both. 1. Subs. by Act 35 of 1993, s. 5, for by such fee (if any) not exceeding rupees twenty -five as may be prescribed (w.e.f. 1 -7-1993). 2. Subs. by s. 6, ibid., for six months or with fine which may extend to two thousand rupees (w.e.f. 1 -7-1993). 8 1 [(1A) Whoever, not being a citizen of India, (a) makes an application for a passport or obtains a passport by suppressing information about his nationality, or (b) holds a forged passport or any travel document, shall be punishable with imprisonment for a term which s hall not be less than one year but which may extend to five years and with fine which shall not be less than ten thousand rupees but which may extend to fifty thousand rupees.] (2) Whoever abets any offence punishable under 2[sub-section ( 1) or sub-section ( 1A)] shall, if the act abetted is committed in consequence of the abetment, be punishable with the punishment provided in that sub -section for that offence. (3) Whoever contravenes any condition of a passport or travel document or any provisi on of this Act or any rule made thereunder for which no punishment is provided elsewhere in this Act shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both. (4) Whoever, having been convicted of an offence under this Act, is again convicted of an offence under this Act shall be punishable with double the penalty provided for the latter offence. 13. Power to arrest .(1) Any officer of customs empowered by a general or special order of the Central Gove rnment in this behalf and any 3[officer of police or emigration officer] not below the rank of a sub -inspector may arrest without warrant any person against whom a reasonable suspicion exists that he has committed any of fence punishable under section 12 and shall, as soon as may be, inform him of the grounds for such arrest. (2) Every officer making an arrest under this section shall, without unnecessary delay, take or send the person arrested before a magistrate having jurisdiction in the case or to the officer in charge of the nearest police station and the provisions of 4[section 57 of the Code of Criminal procedure, 1 973 (2 of 1974) ] shall, so far as may be, apply in the case of any such arrest . 14. Power of search and seizure. (1) Any officer of customs empowered by a general or special order of the Central Gove rnment in this behalf and any 3[officer of police or emigration officer] not below the rank of a sub -inspector may search any place and seize any passport or travel document from any person against whom a reasonable suspicion exists that he has committed any offence punishable under section 12. (2) The provisions of the 5[Code of Criminal Procedure, 1973 (2 of 1974) ], relating to searches and seizu res shall, so far as may be, apply to searches and seizures under this section. 15. Previous sanction of Central Government necessary. No prosecution shall be instituted against any person in respect of any offence under this Act without the previous sanct ion of the Central Government or such officer or authority as may be authori sed by that Government by order in writing in this behalf. 16. Protection of action taken in good faith. No suit, prosecution or other legal proceeding shall lie against the Government or any officer or authority for anything which is in good faith done or intended to be done under this Act. 17. Passports and travel documents to be property of Central Govern ment. A passport or travel document issued under this Act shall at all times remain the property of the Central Government . 18. [Passports, etc., not to be issued to persons who cannot emigrate under Act 7 of 1922] .Omitted by the Passports (Amendment ) Act, 1993 (35 of 1993) , s. 8 (w.e.f . 1-7-1993). 1. Ins. by Act 35 of 1993 s. 6, (w.e.f. 1 -7-1993). 2. Subs. by s. 6, ibid., for sub-section ( 1) (w.e.f. 1 -7-1993). 3. Subs. by s. 7, ibid., for Officer of police (w.e.f. 1 -7-1993). 4. Subs. by Act 31 of 1978, s. 3, for section 61 of the Code of Criminal Procedure, 1898 (5 of 1898) (w.e.f. 18 -8-1978). 5. Subs. by s. 4, ibid., for Code of Criminal Procedure, 1898 (5 of 1898) (w.e.f. 18 -8-1978). 9 19. Passports and travel documents to be invalid for travel to certain countries. Upon the issue of a notification by the Central Government that a foreign country is (a) a country which is committing external aggression against India; or (b) a country assisting the country committing external aggression against India; or (c) a country where armed hostilities are in progress; or (d) a country to which travel must be restricted in the public interest because such travel would seriously impai r the conduct of foreign affairs of the Government of India , a passport or travel document for travel through or visiting such country shall cease to be valid for such travel or visit unless in any case a special endorsement in that behalf is made in the prescribed form by the prescribed authority. 20. Issue of passports and travel documents to persons who are not citizens of India.Notwithstanding anything contained in the foregoing provisions relating to issue of a passport or travel document, the Central Government may issue, or cause to be issued, a passport or travel document to a person who is not a citizen of India if that Government is of the opinion that it is necessary so to do in the public interest. 21. Power to delega te.The Central Government may, by notification in the Official Gazette, direct that any power or function which may be exercised or performed by it under this Act other than the power under clause ( d) of sub -section ( 1) of section 6 or the power under cla use ( i) of sub -section ( 2) of that section or the power under section 24, may, in relation to such matters and subject to such conditions, if any, as it may specify in the notification, be exercised or performed (a) by such officer or authority subordina te to the Central Government; or (b) by any State Government or by any officer or authority subordinate to such Government; or (c) in any foreign country in which there is no diplomatic mission of India, by such foreign Consular Officer; as may be specif ied in the notification. 22. Power to exempt. Where the Central Government is of the opinion that it is necessary or expedient in the public interest so to do, it may, by notification in the Official Gazette and subj ect to such conditions, if any, as it m ay specify in the notification , (a) exempt any person or class of persons from the operation of all or any of the provisions of this Act or the rules made thereunder; and (b) as often as may be, cancel any such notification and again subject, by a like notification, the person or class of persons to the operation of such provisions. 23. Act to be in addition to certain enactments. The provisions of this Act shall be in addition to and not in derogation of the provisions of the Passport (Entry into India) Act, 1920 (34 of 1920), 1[the Emigration Act, 1983 (31 of 1983)] the Registration of Foreigners Act, 1939 (16 of 1939), the Forei gners Act, 1946 (31 of 1946), 2***, Trading with the Enemy (Continuance of Emergency Provisions) (16 of 19 47), the Foreigners Law (Application and Amend ment) Act, 1962 (42 of 1962), 3[the Foreign Exchange Regulation Act, 1973 (46 of 1973)] and other enactments relating to foreigners and foreign exchange. 24. Power to make rules. (1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act. 1. Subs. by Act 3 5 of
make rules for carrying out the purposes of this Act. 1. Subs. by Act 3 5 of 1993, s. 9 , for the Emigration Act, 1922 (7 of 1922) (w.e.f. 1 -7-1993). 2. The words and figures the Foreign Exchange Regulation Act, 1947 (7 of 1947) omitted by Act 31 of 1978, s. 5 (w.e.f. 18 -8-1978). 3. Ins. by Act 31 of 1978, s. 5, ibid. (w.e.f. 18 -8-1978). 10 (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any o f the fo llowing matters, namely : (a) the appointment, jurisdiction, control and functions of passport authorities; (b) the classes of persons to whom passports and travel documents referred to respectively in sub-section ( 1) and sub -section ( 2) of section 4 may be issued; (c) the form and particulars of application for the issue or renewal of a passport or travel document or for endorsement on a passport or travel document and where the application is for the renewal, the time within which it shall be made; (d) the period for which passports and travel documents shall continue in force; (e) the form in which and the conditions subject to which the different classes of passports and travel documents may be issued, renewed or varied; 1[(ee) specifying the fo reign country for the purposes of the Explanation to sub -section ( 1) of section 5;] (f) the fees payable in respect of 2[any application for the issue of a passport under sub -section ( 1) of section 5 or issue of a passp ort for visiting a foreign country referred to in sub -section ( 1A) of section 5 ] or travel document or for varying any endorsement or making a fresh endorsement on a passport or a travel document and the fees payable in respect of any appeal under this Act; (g) the appointment of a ppellate authorities under sub -section ( 1) of section 11, the jurisdiction of, and the procedure which may be followed by, such appellate authorities; (h) the services (including the issue of a duplicate passport or travel document in lieu of a passport or travel document lost, damaged or destroyed) which may be rendered in relation to a passport or travel document and the fees therefor; (i) any other matter which is to be or may be prescribed or in respect of which this Act makes no provision or makes insufficient provision and provision is, in the opinion of the Central Government, necessary for the proper implementation of the Act. (3) Every rule made under this Act shall be laid as soon as may be after it is made, before each H ouse of Parliament while it is in session for a total period of thirty days which may be comprised in one session or 3[in two or more successive sessions and if, before the expiry of the session immediately following the session or the successive sessions aforesaid], both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule. 25. Change of short title of Act 34 of 1920. In the Indian Passport Act, 1920, in sub -section ( 1) of section 1, for the words and figures the Indian Passport Act, 1920, the words, brackets and figures the Passport (Entry into India) Act, 1920 shall be substituted . 26. [Saving as to certain passports and applications .]Omitted by the Passports (Amendment ) Act, 1993 (35 of 1993), s. 8 (w.e.f . 1-7-1993). 27. Repeal and saving. (1) The Passports Ordinance, 1967 (4 of 1967) is hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken or purporting to have been done or taken under the said Ordinance shall be deemed to have been done or taken under this Act as if this Act had commenced on the 5th day of May, 1967. 1. Ins. by Act 31 of 1978, s. 6 (w.e.f. 18 -8-1978). 2. The words issue or renewal of a passport of c lause ( f) were subs. by Act 31 of 1978, s. 6 (w.e.f.18 -8-1978) to read as issue or renewal of a passport for visiting a foreign country referred to in sub -section ( 1A) of section 5and the words any application for the issue or renewal of a passport were further subs. by Act 35 of 1993, s.10 to read as above (w.e.f.1 -7-1993). 3. Subs. by Act 31 of 1978, s. 6, for certain words (w.e.f. 18-8-1978) .
THE BANKING REGULATION ACT, 1949 ACT NO. 10 OF 19491 [10th March , 1949 .] An Act to consolidate and amend the law relating to banking 2*. WHEREAS it is expedient to consolidate and amend the law relating to banking 2; It is hereby enacted as follows : PART I PRELIMINARY 1. Short title, extent and commencement .(1) This Act may be called the Banking 3[Regulation] Act, 1949. 4[(2) It extends to the whole of India 5*.] (3) It shall come into force on such date6 as the Central Government may, by notification in the Official Gazette, appoint in this behalf. 2. Application of other laws not barred .The provisions of this Act shall be in addition to, and not, save as hereinafter expressly provide d, in derogation of the 7[Companies Act, 1956 (1 of 1956)] , any other law for the time being in force. 8[3. Act not to apply to certain co -operative societies. Notwithstanding anything contained in the National Bank for Agriculture and Rural Development Ac t, 1981 (61 of 1981), this Act shall not apply to (a) a primary agricultural credit society; or (b) a co -operative society whose primary object and principal business is providing of long - term finance for agricultural development, if such society does not use as part of its name, or in connection with its business, the words bank, banker or banking and does not act as drawee of cheques.] 4. Power to suspend operation of Act .(1) The Central Government, if on a representation made by the Reserve Bank in this behalf is satisfied that it is expedient so to do, may by notification in the Official Gazette, suspend for such period, not exceeding sixty days, as may be specified in the notification, the operation of all or any of the provisions of this Act, either generally or in relation to any specified banking company. (2) In a case of special emergency, the Governor of the Reserve Bank, or in his absence a Deputy Governor of the Reserve Bank nominated by him in this behalf may, by order in writing, exerci se the powers of the Central Government under sub -section ( 1) so however that the period of suspension shall not exceed thirty days, and where the Governor or the Deputy Governor, as the case may be, does so, he shall report the matter to the Central Gover nment forthwith, and the order shall, as soon as may be, be published in the Gazette of India. 1. For statement of Objects and Reasons, see Gazette of India, 1948, Part V, pp. 311 and 312; for Report of Select Committee, see ib id., 1949. Part V. pp. 45 to 48. Extended to Dadra and Nagar Haveli by Regulation 6 of 1963, section 2 and Schedule I (w.e.f. 1 -7-1965) and to Goa, Daman and Diu by Regulation 11 of 1963, section 3 and Schedule (w.e.f. 1 -2-1965). Nothing in this Act (exce pt section 34A) shall apply to the Industrial Development Bank of India, vide Act 18 of 1964, section 34. 2. The word companies omitted by Act 23 of 1965, s. 10 (w.e.f. 1 -3-1966). 3. Subs. by s. 11, ibid., for Companies (w.e.f. 1 -3-1966). 4. Subs. by Act 20 of 1950, s. 2, for sub -section ( 2) (w.e.f. 18 -3-1950). 5. The words except the State of Jammu and Kashmir omitted by Act 62 of 1956, s. 2 and the Schedule (w.e.f. 1 -11-1956). 6. 16th March, 1949, see Notification No. F. 4 (46) -FI/49, dated t he 10th March, 1949, Gazette of India, 1949, Part I. 7. Subs. by Act 95 of 1956, s. 14 and the Schedule, for Indian Companies Act, 1913 (7 of 1913) (w.e.f. 14 -1-1957). 8. Subs. by Act 39 of 2020, s. 2, for section 3 (w.e.f. 26 -6-2020). 7 (3) The Central Government may, by notification in the Official Gazette, extend from time to time the period of any suspension ordered under sub -section ( 1) or s ub-section ( 2) for such period, not exceeding sixty days at any one time, as it thinks fit so however that the total period does not exceed one year. (4) A copy of any notification issued under sub -section ( 3) shall be laid on the table of 1[Parliament] as soon as may be after it is issued. 5. Interpretation .2[In this Act], unless there is anything repugnant in the subject or context, 3[(a) approved securities means the securities issued by the Central Government or any State Government or such other s ecurities as may be specified by the Reserve Bank from time to time.] (b) banking means the accepting, for the purpose of lending or investment, of deposits of money from the public, repayable on demand or otherwise, and withdrawable by ch eque, draft, order or otherwise; (c) banking company means any company which transacts the business of banking 4[in India]; Explanation .Any company which is engaged in the manufacture of goods or carries on any trade and which accepts deposits of m oney from the public merely for the purpose of financing its business as such manufacturer or trader shall not be deemed to transact the business of banking within the meaning of this clause; 5[(ca) banking policy means any policy which is specified from time to time by the Reserve Bank in the interest of the banking system or in the interest of monetary stability or sound economic growth, having due regard to the interests of the depositors, the volume of deposits and other resources of the bank and the need for equitable allocation and the efficient use of these deposits and resources;] 6[(cc) branch or branch office , in relation to a banking company, means any branch or branch office, whether called a pay office or sub -pay office or by any other nam e, at which deposits are received, cheques cashed or moneys lent, and for the purposes of section 35 includes any place of business where any other form of business referred to in sub -section ( 1) of section 6 is transacted;] 7[(d) company means any compa ny as defined in section 3 of the Companies Act, 1956 (1 of 1956); and includes foreign company within the meaning of section 591 of that Act;] 8[(da) corresponding new bank means a corresponding new bank constituted under section 3 of the Ban king Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970), or under section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 (40 of 1980);] 9 * * * * 1. Subs. by the A .O. 1950, for the Dominion Legislature. 2. Subs. by Act 55 of 1963, s. 6, for ( 1) In this Act (w.e.f. 1 -2-1964). 3. Subs. by Act 4 of 2013, s. 2 (w.e.f. 18 -1-2013). 4. Subs. by Act 20 of 1950, s. 3, for in any State. 5. Ins. by Act 58 of 1968, s. 2 ( w.e.f. 1 -2-1969). 6. Ins. by Act 33 of 1959, s. 2 (w.e.f. 1 -10-1959). 7. Subs. by s. 2, ibid., for clause ( d) (w.e.f. 1 -10-1959). 8. Ins. by Act 1 of 1984, s. 13 (w.e.f. 15 -2-1984). 9. Clause ( e) omitted by Act 52 of 1953, s. 2 (w.e.f. 30 -12-1953). 8 (f) demand liabilit ies means liabilities which must be met on demand, and time liabilities means liabilities which are not demand liabilities; 1[(ff) Deposit Insurance Corporation means the Deposit Insurance Corporation established under section 3 of the Deposit Insurance Corporation Act, 19 61 (47 of 1961);] 2[ 3* * * * * (ffb) Exim Bank means the Export -Import Bank of India established under section 3 of the Export -Import Bank of India Act, 1981 (28 of 1981);] 4[(ffc) Reconstruction Bank means the Industrial Reconstruction Bank o f India established under Section 3 of the Industrial Reconstruction Bank of India Act, 1984 (62 of 1984); ] 5[(ffd) National Housing Bank means the National Housing Bank established under section 3 of the National Housing Bank Act, 1987 (53 of 1987) ;] (g) gold includes gold in the form of coin, whether legal tender or not, or in the form of bullion o r ingot, whether refined or not ; 6[(gg) managing agent includes, (i) secretaries and treasurers, (ii) where the managing agent is a company, any directo r of such company, and any member thereof who holds substantial interest in such company, (iii) where the managing agent is a firm, any partner of such firm;] 7[(h) managing director , in relation to a banking company, means a director who, by virtue of an agreement with the banking company or of a resolution passed by the banking company in general meeting or by its Board of directors or, by virtue of its memorandum or articles of association, is entrusted with the management of the whole, or substantia lly the whole of the affairs of the company, and includes a director occupying the position of a managing director, by whatever name called:] 8[Provided that the managing director shall exercise his powers subject to the superintendence, control and direct ion of the Board of directors.] 9[(ha) National Bank means the National Bank for Agriculture and Rural Development established under section 3 of the National Bank for Agriculture and Rural Development Act, 1981 (61 of 1981);] 10[(hb) National Bank for financing Infrastructure and Development means the Inst itution established under section 3 of the National B ank for Financing Infrastructure and Development Act, 2021; (hc) other development financial institution means a development financial institution licensed under section 29 of the National Bank for Financing Infrastructure and Development Act, 2021; ] 11* * * * * (j) prescribed means prescribed by rules made under this Act; 9[(ja) regional rural bank means a regional rural bank established under section 3 of the Regional Rural Banks Act, 1976 (21 of 1976);] 1. Ins. by Act 47 of 1961, s. 51 and the Second Schedule, Part II (w.e.f. 1 -1-1962). 2. Ins. by Act 1 of 1984, s. 13 (w.e.f. 15 -2-1984). 3. Omitted by Act 53 of 2003, s. 12 and Schedule, Part II (w.e.f. 2 -7-2004). 4. Ins. by Act 62 of 1984, s. 71 and the Third Sc hedule (w.e.f. 20 -3-1985). 5. Ins. by Act 53 of 1987, s. 56 and the Second Schedule (w.e.f. 9 -7-1988). 6. Ins. by Act 58 of 1968, s. 2 (w.e.f. 1 -2-1969). 7. Subs. by Act 33 of 1959, s. 2, for clause ( h) (w.e.f. 1 -10-1959). 8. Added by Act 58 of 1968, s. 2 (w.e.f. 1 -2-1969). 9. Ins. by Act 61 of 1981, s. 61 and the Second Schedule (w.e.f. 1 -5-1982). 10. Ins. by Act 17 of 2021, s. 48 and the third Schedule (w.e.f. 19 -4-2021). 11. Omitted by Act 33 of 1959, s. 2 (w.e.f. 1 -10-1959). 9 1* * * * * 2[(l) Reserve Bank means the Reserve B ank of India constituted under section 3 of the Reserve Bank of India Act, 1934 (2 of 1934):] 1* * * * * (n) secured loan or advance means a loan or advance made on the security of assets the market value of which is not at any time less than the amount of such loan or advance; and unsecured loan or advance means a loan or advance not so secured; 3[(ni) Small Industries Bank means the Small Industries Development Bank of India established under section 3 of the Small Industries Development Bank of India Act, 1989 (39 of 1989);] 4[(na) small -scale industrial concern mean an industrial concern in which the investment in plant and machinery is not in excess of seven and a half lakhs of rupees or such higher amount, not exceeding twe nty lakhs of rupees, as the Central Government may, by notification in the Official Gazette, specify in this behalf, having regard to the trends in industrial development and other relevant factors; 5[(nb)
azette, specify in this behalf, having regard to the trends in industrial development and other relevant factors; 5[(nb) Sponsor Bank has the meaning assigned to it in t he Regional Rural Banks Act, 1976 (21 of 1976) : (nc) State Bank of India means the State Bank of India constituted under section 3 of the State Bank of India Act, 1955 (23 of 1955);] 6[(nd)] subsidiary bank has the meaning assigned to it in the State Bank of India (Subsidiary Banks) Act, 1959 (38 of 1959); 7[(ne)] substantial interest , (i) in relation to a company, means the holding of a beneficial interest by an individual or his spouse or minor child, whether singly or taken together in the shares thereof, the amount paid-up on which exceeds five lakhs of rupees or ten per cent. of the paid -up capital of the company, whichever is less; (ii) in relation to a firm, means the beneficial interest held therein by an individual or his spouse or minor ch ild, whether singly or taken together, which represents more than ten per cent . of the total capital subscribed by all the partners of the said firm;] 8[(o) all other words and expressions used herein but not defined and defined in the Compan ies Act, 1956 (1 of 1956), shall have the meanings respectively assigned to them in that Act.] 9* * * * * 10[5A. Act to override memorandum, articles, etc .Save as otherwise expressly provided in this Act, (a) the provisions of this Act shall have e ffect notwithstanding anything to the contrary contained in the memorandum or articles of a banking company, or in any agreement executed by it, or in any resolution passed by the banking company in general meeting or by its Board of 1. Omitted by Act 33 of 1959, s. 2 (w.e.f. 1 -10-1959). 2. Subs. by Act 1 of 1984, s. 13, for clause ( l) (w.e.f. 15 -2-1984). 3. Ins. by Act 39 of 1989, s. 53 and the Second Schedule (w.e.f. 25 -10-1989). 4. Ins. by Act 58 of 1968, s. 2 (w.e.f. 1 -2-1969). 5. Ins. by Act 1 of 1984, s. 13, (w.e.f. 15 -2-1984). 6. Clause ( nb) re-lettered as clause ( nd) by Act 1 of 1984, s. 13 (w.e.f. 15 -2-1984). 7. Clause ( nc) re-lettered as clause ( ne) by s. 13, ibid. (w.e.f. 15 -2-1984). 8. Ins. by Act 33 of 1959, s. 2 (w.e.f. 1 -10-1959). 9. Omitted by the A.O. 1950. 10. Ins. by Act 33 of 1959, s. 3 (w.e.f. 1 -10-1959). 10 Directors, whether the same be registered, executed or passed, as the case may be, before or after the commencement of the Banking Companies (Amendment) Act, 1959 (33 of 1959) ; and (b) any provision contained in the memorandum, articles, agreement or resolution aforesaid shall, to the extent to which it is repugnant to the provisions of this Act, become or be void, as the case may be .] PART II BUSINESS OF BANKING COMPANIE S 6. Forms of business in which banking companies may engage .(1) In addition to the business of banking, a b anking company may engage in any one or more of the following forms of business, namely: (a) the borrowing, raising, or taking up of money; the lending or advancing of money either upon or without security; the drawing, making, accepting, discounting, buy ing, selling, collecting and dea ling in bills of exchange , hoondees, promissory notes, coupons, drafts, bills of lading, railway receipts, warrants, debentures, certificates, scripts and other instruments, and securities whether transferable or negotiable or not; the granting and issuing of letters of credit, traveller's cheques and circular notes; the buying, selling and dealing in bullion and specie; the buying and selling of foreign exchange including foreign bank notes; the acquiring, holding, issuing o n commission, underwriting and dealing in stock, funds, shares, debentures, debenture stock, bonds, obligations, securities and investments of all kinds; the purchasing and selling of bonds, scrip ts or other forms of securities on behalf of constituents or others, the negotiating of loans and advances; the receiving of all kinds of bonds, scrip ts or valuables on deposit or for safe custody or otherwise; the providing of safe deposit vaults; the collecting and transmitting of money and securities; (b) acting as agents for any Government or local authority or any other person or persons; the carrying on of agency business of any description including the clearing and forwarding of goods, giving of receipts and discharges and otherwise acting as an attorney on behalf of customers but excluding the business of a 1[managing agent or secretary and treasurer] of a company; (c) contracting for public and private loans and negotiating and issuing the same; (d) the effecting, insuring, guranteeing, underwriting, parti cipating in managing and carrying out of any issue, public or private, of State, municipal or other loans or of shares, stock, debentures or debenture stock of any company, corporation or association and the lending of money for the purpose of any such iss ue; (e) carrying on and transacting every kind of guarantee and indemnity business; (f) managing, selling and realising any property which may come into the possession of the company in satisfaction or part satisfaction of any of its claims; (g) acquiring and holding and generally dealing with any property or any right, title or interest in any such property which may form the security or part of the security for any loans or advances or which may be connected with any such security; (h) undertaking and exe cuting trusts; (i) undertaking the administration of estates as executor, trustee or otherwise; (j) establishing and supporting or aiding in the establishment and support of associations, institutions, funds, trusts and conveniences calculated to benefit e mployees or ex -employees of the company or the dependents or connections of such persons; granting pensions and allowances 1. Subs. by Act 33 of 1959, s. 4, for managing agent (w.e.f. 1 -10-1959). 11 and making payments towards insurance; subscribing to or guaranteeing moneys for charitable or benevolent objects or for any exhibition or for any public, general or useful object; (k) the acquisition, construction, maintenance and alteration of any building or works necessary or convenient for the purposes of the company; (l) selling, improving, managing, developing, exchan ging, leasing, mortgaging, disposing of or turning into account or otherwise dealing with all or any part of the property and rights of the company; (m) acquiring and undertaking the whole or any part of the business of any person or company , when such bus iness is of a nature enumerated or described in this sub -section; (n) doing all such other things as are incidental or conducive to the promotion or advancement of the business of the company; (o) any other form of business w hich the Central Government may , by notification in the Official Gazette, specify as a form of business in which it is lawful for a banking company to engage. (2) No banking company shall engage in any form of business other than those referred to in sub-section ( 1). 1[7. Us e of words bank, banker, banking or banking company .(1) No company other than a banking company shall use as part of its name 2[or in connection with its business] any of the words bank , banker or banking and no company shall carry on the bu siness of banking in India unless it uses as part of its name at least one of such words. (2) No firm, individual or group of individuals shall, for the purpose of carrying on any business, use as part of its or his name any of the words bank , banking or banking company . (3) Nothing in this section shall apply to (a) a subsidiary of a banking company formed for one or more of the purposes mentioned in sub-section ( 1) of section 19, whose name indicates that it is a subsidiary of that banking company ; (b) any association of banks formed for the protection of their mutual interests and registered under section 25 of the Companies Act, 1956 (1 of 1956).] 8. Prohibition of trading .Notwithstanding anything contained in section 6 or in any contract, no banking company shall directly or indirectly deal in the buying or selling or bartering of goods, except in connection with the realisation of security given to or held by it, or engage in any trade, or buy, sell or barter goods for others otherwise than i n connection with bills of exchange received for collection or negotiation or with such of its business as is referred to in clause ( i) sub -section ( 1) of section 6: 3[Provided that this section shall not apply to any such business as is specified in pursu ance of clause ( o) of sub -section ( 1) of section 6.] Explanation . For the purposes of this section, goods means every kind of moveable property, other than actionable claims, stocks, shares, money, bullion and specie , and all instruments referred to in clause ( a) of sub -section ( 1) of section 6. 9. Disposal of non -banking assets .Notwithstanding anything contained in section 6, no banking company shall hold any immovable property howsoever acquired, except such as is required for its own use, for any pe riod exceeding seven years from the acquisition thereof or from the commencement of this Act, whichever is later or any extension of such period as in this section provided, and such property shall be disposed of within such period or extended period, as t he case may be: 1. Subs. by Act 55 of 1963, s. 7, for section 7 (w.e.f. 1 -2-1964). 2. Ins. by Act 1 of 1984, s. 14 (w.e.f. 15 -2-1984). 3. Subs. by s. 15, ibid., for the proviso (w.e.f. 15 -2-1984). 12 Provided that the banking company may, within the period of seven years as aforesaid, deal or trade in any such property for the purpose of facilitating the disposal thereof: Provided further that the Reserve Bank may in any particular case , extend the aforesaid period of seven years by such period not exceeding five years where it is satisfied that such extension would be in the interest of the depositors of the bank ing company . 1[10. Prohibition of employment of managing agents and restric tions on certain forms of employment .(1) No banking company (a) shall employ or be managed by a managing agent; or (b) shall employ or continue the employment of any person (i) who is, or at any time has bee n, adjudicated insolvent, or has suspended pay ment or has compounded with his creditors, or who is, or has been, convicted by a criminal court of an offence involving moral turpitude; or (ii) whose remuneration or part of whose remuneration takes the form of commission or of a share in the profits of the company: 2[Provided that nothing contained in this sub -clause shall apply to the payment by a banking company of (a) any bonus in pursuance of a settlement or award arrived at or made under any law relating to industrial disputes or in accordance wit h any scheme framed by such banking company or in accordance with the usual practice prevailing in banking business; (b) any commission to any broker (including guarantee broker), cashier -contractor, clearing and forwarding agent, auctioneer or any other p erson, employed by the banking company under a contract otherwise than as a regular member of the staff of the company; or] (iii) whose remuneration is, in the opinion of the Reserve Bank, excessive ; or (c) shall be managed by any person 3[(i) who is a di rector of any other company not being (a) a subsidiary of the banking company, or (b) a company registered under section 25 of the Companies Act, 1956 (1 of 1956 ): Provided that the prohibition in this sub -clause shall not apply in respect of any such director for a temporary period not exceeding three months or such further period not exceeding nine months as the Reserve Bank may allow; or] (ii) who is engaged in any other business or vocation; or (iii) 4[whose term of office as a person managing the com pany is] for a period exceeding five years at any one time: 5[Provided that the term of office of any such person may be renewed or extended by further periods not exceeding five years on each occasion subject to the condition that such renewal or extensio n shall not be sanctioned earlier than two years from the date on which it is to come into force: 1. Subs. by Act 95 of 1956, s. 2, for section 10 (w.e.f. 14 -1-1957). 2. Subs. by Act 33 of 1959, s. 6, for the proviso (w.e.f. 1 -10-1959). 3. Subs. by s. 6, ibid., for sub -clause ( i) (w.e.f. 1 -10-1959). 4. Subs. by Act 55 of 1963, s. 8, for who has a contract wit h the company for its management (w.e.f. 1 -2-1964). 5. Subs. by s. 8, ibid., for the first proviso (w.e.f. 1 -2-1964). 13 Provided also that where the term of office of
w.e.f. 1 -2-1964). 13 Provided also that where the term of office of such person is for an indefinite period, such term, unless it otherwise comes to an end earlier, shall come to an end immediately on the expiry of five years from the date of his appointment or on the expiry of three months from the date of commencement of section 8 of the Banking Laws (Miscellaneous Provisions) Act, 1963 (55 of 1963), whichever is later:] Provid ed further that nothing in this clause shall apply to a director, other than the managing director, of a banking company by reason only of his being such director. Explanation .For the purpose of sub -clause ( iii) of clause ( b), the expression remuneration , in relation to person employed or continued in employment, shall include salary, fees and perquisites but shall not include any allowances or other amounts paid to him for the purpose of reimbursing him in respect of the expenses actually incurred by hi m in the performance of his duties. (2) In forming its opinion under sub -clause ( iii) of clause ( b) sub -section ( 1), the Reserve Bank may have regard among other matters to the following: (i) the financial condition and history of the banking company, its size and area of operation, its resources, the volume of its business, and the trend of its earning capacity; (ii) the number of its branches or offices; (iii) the qualifications, age and experience of the person concerned; (iv) the remuneration paid to o ther persons employed by the banking company or to any person occupying a similar position in any other banking company similarly situated; and (v) the interests of its depositors. 1[ 2* * * * * (6) Any decision or order of the Reserve Bank made un der this section shall be final for all purposes. ]] 3[10A. Board of directors to include persons with professional or other experience .(1) Notwithstanding anything contained in any other law for the time being in force, every banking company, (a) in exis tence on the commencement of section 3 of the Banking Laws (Amendment) Act, 1968 (58 of 1968) , or (b) which comes into existence thereafter, shall comply with the requirements of this section: Provided that nothing contained in this sub -section shall apply to a banking company referred to in clause ( a) for a period of three months from such commencement. (2) Not less than fifty -one per cent. of the total number of members of the Board of directors of a banking company shall consist of persons, who (a) shal l have special knowledge or practical experience in respect of one or more of the following matters, namely: (i) accountancy, (ii) agriculture and rural economy, (iii) banking, (iv) co-operation, (v) economics, 1. Subs. by Act 33 of 1959, s. 6, for sub -section ( 3) (w.e.f. 1 -10-1959). 2. Omitted by Act 55 of 1963, s. 8 (w.e.f. 1 -2-1964). 3. Ins . by Act 58 of 1968, s. 3 (w.e.f. 1 -2-1969). 14 (vi) finance, (vii) law, (viii) small -scale industry, (ix) any other matter the special knowledge of, and practical experience in, which would, in the opinion of the Reserve Bank, be useful to the banking company: Provided that out of the aforesaid number of directors, not less than two shall be per sons having special knowledge or practical experience in respect of agriculture and rural economy, co -operation or small -scale industry; and (b) shall not (1) have substantial interest in, or be connected with, whether as employee, manager or managing age nt, (i) any company, not being a company registered under section 25 of the Companies Act, 1956 (1 of 1956.), or (ii) any firm, which carries on any trade, commerce or industry and which, in either case, is not a small -scale industrial concern, or (2) be proprietors of any trading, commercial or industrial concern, not being a small -scale industrial concern. 1[(2A) Notwithstanding anything to the contrary contained in the Companies Act, 1956 (1 of 1956), or in any other law for the time being in force, (i) no director of a banking company, other than its chairman or whole -time director, by whatever name called, shall hold office continuously for a period exceeding eight years; (ii) a chairman or other whole -time director of a banking com pany who has been removed from office as such chairman, or whole -time director, as the case may be, under the provisions of this Act shall also cease to be a director of the banking company and shall also not be eligible to be appointed as a director of su ch banking company, whether by election or co -option or otherwise, for a period of four years from the date of his ceasing to be the chairman or whole -time director, as the case may be.] (3) If, in respect of any banking company, the requirements, as laid down in sub -section ( 2), are not fulfilled at any time, the Board of directors of such banking company shall re -constitute such Board so as to ensure that the said requirements are fulfilled. (4) If, for the purpose of re -constituting the Board under sub -section ( 3), it is necessary to retire any director or directors, the Board may, by lots drawn in such manner as may be prescribed, decide which director or directors shall cease to hold office and such decision shall be binding on every director of the Boa rd. (5) Where the Reserve Bank is of opinion that the composition of the Board of directors of a banking company is such that it does not fulfil the requirements of sub -section ( 2), it may, after giving to such banking company a reasonable opportunity of b eing heard, by an order in writing, direct the banking company to so re -constitute its Board of directors as to ensure that the said requirements are fulfilled and, if within two months from the date of receipt of that order, the banking company does not comply with the directions made by the Reserve Bank, that Bank may, after determining, by lots drawn in such manner as may be prescribed, the person who ought to be removed from the membership of the Board of directors, remove such person from the office of the director of such banking company and with a view to complying with the provisions of sub -section ( 2), appoint a suitable person as a member 1. Ins. by Act 1 of 1984, s. 16 (w.e.f. 15 -2-1984). 15 of the Board of directors in the place of the person so removed whereupon the person so appointed shall be deem ed to have been duly elected by the banking company as its director. (6) Every appointment, removal or reconstitution duly made, and every election duly held, under this section shall be final and shall not be called into question in any court. (7) Every d irector elected or, as the case may be, appointed under this section shall hold office until the date up to which his predecessor would have held office, if the election had not been held, or, as the case may be, the appointment had not been made. (8) No a ct or proceeding of the Board of directors of a banking company shall be invalid by reason only of any defect in the composition thereof or on the ground that it is subsequently discovered that any of its members did not fulfil the requirements of this sec tion. 10B. Banking company to be managed by whole time chairman .1[(1) Notwithstanding anything contained in any law for the time being in force or in any contract to the contrary, every banking company in existence on the commencement of the Banking Regul ation (Amendment) Act, 1994 (20 of 1994) , or which comes into existence thereafter shall have one of its directors, who may be appointed on a whole -time or a part -time basis as chairman of its Board of directors, and where he is appointed on a whole -time b asis, as chairman of its Board of directors, he shall be entrusted with the management of the whole of the affairs of the banking company: Provided that the chairman shall exercise his powers subject to the superintendence, control and direction of the Boa rd of directors. (1A) Where a chairman is appointed on a part -time basis, (i) such appointment shall be with the previous approval of the Reserve Bank and be subject to such conditions as the Reserve Bank may specify while giving such approval; (ii) the m anagement of the whole of the affairs of such banking company shall be entrusted to a managing director who shall exercise his powers subject to the superintendence, control and direction of the Board of directors.] (2) 2[Every chairman of the Board of dir ectors who is appointed on a whole -time basis and every managing director] of a banking company shall be in the whole time employment of such company and shall hold office for such period, not exceeding five years, as the Board of directors may fix, but sh all, subject to the provisions of this section, be eligible for re -election or re -appointment: Provided that nothing in this sub -section shall be construed as prohibiting a chairman from being a director of a subsidiary of the banking company or a director of a company registered under section 25 of the Companies Act, 1956 ( 1 of 19 56). (3) Every person holding office on the commencement of section 3 of the Banki ng Laws (Amendment) Act, 1968 (58 of 19 68), as managing director of a banking company shall (a) if there is a chairman of its Board of directors, vacate office on such commencement, or (b) if there is no chairman of its Board of directors, vacate office on the date on which the chairman of its Board of directors is elected or appointed in accordance with the provisions of this section. (4) 3[Every chairman who is appointed on a whole -time basis and every managing director of a banki ng company appointed under sub -section ( 1A)] shall be a person who has special knowledge and practical experience of (a) the working of a banking company, or of the State Bank of India or any subsidiary bank or a financial institution, or 1. Subs. by Act 20 of 1994, s. 2, for sub -section ( 1) (w.e.f. 31 -1-1994). 2. Subs. by s. 2, ibid., for Every chairman of the Board of directors (w.e.f. 31 -1-1984). 3. Subs. by s. 2, ibid., for Every chairman of the Board of directors of a banking company (w.e.f. 31 -1-1994). 16 (b) financial, econ omic or business administration: Provided that a person shal l be disqualified for being a 1[chairman who is appointed on a whole -time basis or a managing director] if he (a) is a director of any company other than a company referred to in the proviso to sub-section ( 2), or (b) is a partner of any firm which carries on any trade, busines s or industry, or (c) has substantial interest in any other company or firm, or (d) is a director, manager, managing agent, partner or proprietor of any trading, commercial or industrial concern, or (e) is engaged in any other business or vocation. (5) 2[A chairman of the Board of directors appointed on a whole -time basis or a managing director] of a banking company may, by writing , under his hand addressed to the company, resign his office , 3*** 4[(5A) 2[A chairman of the Board of directors appoint on a wh ole-time basis or a managing director] whose term of office has come to an end, either by reason of his resignation or by reason of expiry of the period of his office, shall, subject to the approval of the Reserve Bank, continue in office until his success or assumes office .] (6) Without prejudice to the provisions of section 36AA, where the Reserve Bank is of opinion that any person who is, or has been elected to be, the 5[chairman of the Board of directors who is appointed on a whole -time basis or the mana ging director] of a banking company is not a fit and proper person to hold such office, it may, after giving to such person and to the banking company a reasonable opportunity of being heard, by order in writing, require the banking company to elect or ap point any other person as the 6[chairman of the Board of directors who is appointed on a whole -time basis or the managing director] and if, within a period of two months from the date of receipt of such order, the banking company fails to elect or app oint a suitable person as the 6[chairman of the Board of directors who is appointed on a whole -time basis or the managing director] the Reserve Bank may, by order, remove the first -mentioned person from the office of the 5[chairman of the Board of directors who is appointed on a whole -time basis or the managing director] of the banking company and appoint a suitable person in his place whereupon the person so appointed shall be deemed to have been duly elected or appointe d, as the case may be, as the 5[chairman o f the Board of directors who is appointed on a whole -time basis or the managing director] of such banking compa ny and any persons elected or 7[appointed as chairman on a whole -time basis or managing director] under this sub -section shall hold office for th e residue of the period of office of the person is whose place he has been so elected or appointed. (7) The banking company and any person against whom an order of removal is made under sub-section ( 6) may, within thirty days from the date of communication to it or to him of the order, prefer an appeal to the Central Government and the decision of the Central Government thereon, and subject thereto, the order made by the Reserve Bank under sub -section ( 6), shall be final and shall not be calle d into question in any court. 1. Subs. by Act 20 of 1994, s. 2, for chairman (w.e.f. 31 -1-1994). 2. Subs. by s. 2, ibid., for A chairman of the Board of directo rs (w.e.f. 31 -1-1994). 3. The words but shall continue in office until his successor assumes office omitted by Act 1 of 1984, s. 17 (w.e.f. 15 -2-1984).
1984, s. 17 (w.e.f. 15 -2-1984). 4. Ins. by s. 17, ibid. (w.e.f. 15 -2-1984). 5. Subs. by Act 20 of 1994, s. 2, for chairman of the Board of directors (w.e.f. 31 -1-1994). 6. Subs. by s. 2, ibid., for chairman of its Board of directors (w.e.f. 31 -1-1994). 7. Subs. by s. 2, ibid., for appointed as chairman (w.e.f. 31 -1-1994). 17 (8) Notwithstanding anything contained in this section, the Reserve Bank may, if in its opinion it is necessary in the pub lic interest so to do, permit 1[the chairman of the Board of directors who is appointed on a whole -time basis or the managing director] to undertake such part -time honorary work as is not likely to interfere with his duties as 2[such chairman or managing director] . (9) Notwithstanding anything contained in this section, where a person 3[appointed on a whole -time basis, as chairman of the Board of directors or managing director] dies or resigns or is by infirmity or otherwise rendered incapable of carrying out his duties or is absent on leave or otherwise in circumstances not involving the vacat ion of his office, the banking company may, with the approval of the Reserve Bank, make suitable arra ngements for carrying out the 4[duties of chairman or managing director] for a total period not exceeding four months. 5[10BB. Power of Reserve Bank to app oint 6[chairman of the Board of directors appointed on a wh ole-time basis or a managing di rector] of a banking company .(1) Where the office of the 6[chairman of the Board of directors appointed on a whole -time basis or a managing director] of a banking co mpany is vacant, the Reserve Bank may, if it is of opinion that the continuation of such vacancy is likely to adversely affect the interests of the banking company, appoint a person, eligible under sub -section ( 4) of section 10B to be so appointed, to be t he 6[chairman of the Board of directors appointed on a whole -time basis or a managing director] of the banking company and where the person so appointed is not a director of such banking company, he shall, so long as he holds the office of the 6[chairman o f the Board of directors appointed on a whole -time basis or a managing director], be deemed to be a director of the banking company. (2) The 6[chairman of the Board of directors appointed on a whole -time basis or a managing director] so appointed by the Re serve Bank shall be in the whole -time employment of the banking company and shall hold office for such period not exceeding three years, as the Reserve Bank may specify, but shall, subject to other provisions of this Act, be a eligible for reappointment. (3) The 6[chairman of the Board of directors appointed on a whole -time basis or a managing director] so appointed by the Reserve Bank shall draw from the banking company such pay and allowances as the Reserve Bank may determine and may be removed from offic e only by the Reserve Bank. (4) Save as otherwise provided in this section, the provisions of section 10B shall, a s far as may be, apply to the 6[chairman of the Board of directors appointed on a whole -time basis or a managing director] appointed by the Re serve Bank under sub -section ( 1) as they apply to a 6[chairman of the Board of directors appointed on a whole - time basis or a managing director] appointed by the banking company] . 7[10C. Chairman and certain directors not to be required to hold qualificat ion shares .8[A chairman of the Board of directors who is appointed on a whole -time basis or a managing director] of a banking company (by whomsoever appointed) and a director of a banking company (appointed by the Reserve Bank under section 10A) shall not be required to hold qualification shares in the banking company.] 1. Subs. by Act 20 of 1994, s. 2, f or the chairman (w.e.f. 31 -1-1994). 2. Subs. by s. 2, ibid., for such chairman (w.e.f. 31 -1-1994). 3. Subs. by s. 2, ibid., for appointed as chairman (w.e.f. 31 -1-1994). 4. Subs. by s. 2, ibid., for duties as chairman (w.e.f. 31 -1-1994). 5. Ins. by Act 1 of 1984, s. 18 (w.e.f. 15 -2-1984). 6. Subs. by Act 20 of 1994, s. 3, for chairman (w.e.f. 31 -1-1994). 7. Subs. by Act 1 of 1984, s. 19, for section 10C (w.e.f. 15 -2-1984). 8. Subs. by Act 20 of 1994, s. 4, for A chairman (w.e.f. 31 -1-1994). 18 10D. Provisions of sections 10A, 10B and 10BB to override all other laws, contracts, etc. Any appointment or removal of a 1[director, chairman of the Board of directors who is appointed on a whole -time basis or managing director] in pursuance of section 10A or section 10B 2[or section 10BB] shall have effect and any such person shall not be entitled to claim any compensation for the loss or termination of office, notwithstand ing anything contained in any law or in any contract, memorandum or articles of association.] 11. Requirement as to minimum paid -up capital and reserves .(1) Notwithstanding anythi ng contained in 3[section 149 of the Companies Act, 1956 (1 of 1956)], no b anking company in existence on the commencement of this Act, shall, after the expiry of three years from such commencement or of such further period not exceeding one year as the Reserve Bank, having regard to the interests of the depositors of the company , may think fit in any particular case to allow, carry on business 4[in India], and no other banking company shall after the commencement of this Act, commence or carry on business 4[in India], 5[unless it complies with such of the requirements of this se ction as are applicable to it]. 6[(2) In the case of a banking company incorporated outside India (a) the aggregate value of its paid -up capital and reserves shall not be less than fifteen lakhs of rupees and if it has a place or places of business in the city of Bombay or Calcutta or both, twenty lakhs of rupees; and (b) 7[the banking company shall deposit and keep deposited with the Reserve Bank either in cash or in the form of unencumbered approved securities, or partly in cash and partly in the form of such securities (i) an amount which shall not be less than the minimum required by clause ( a); and (ii) as soon as may be af ter the expiration of each 8* year, an amount calculated at twenty per cent. of its profit for that year in respect of all busine ss transacted through its branches in India, as disclosed in the profit and loss account prepared with reference to that year under section 29:] Provided that any such banking company may at any time replace (i) any securities so deposited by cash or by a ny other unencumbered approved securities, or partly by cash and partly by other such securities, so however, that the total amount deposited is not affected; (ii) any cash so deposited by unencumbered approved securities of an equal value.] 9[(2A) Notwit hstanding anything contained in sub -section ( 2), the Central Government may, on the recommendation of the Reserve Bank, and having regard to the adequacy of the amounts already deposited and kept deposited by a banking company under sub -section (2), in rel ation to its deposit liabilities in India, declare by order in writing that the provisions of sub -clause ( ii) of clause ( b) of sub-section ( 2) shall not apply to such banking company for such period as may be specified in the order.] 1. Subs. by Act 20 of 1994, s. 5, for director or chairman (w.e.f. 31 -1-1994). 2. Ins. by Act 1 of 1984, s. 20 (w.e.f. 15 -2-1984). 3. Subs. by Act 95 of 1956, s. 14 and the Schedule, for section 103 of the Indian Companies Act, 1913 (7 of 1913) (w.e.f . 14-1-1957). 4. Subs. by Act 20 of 1950, s. 3, for in any State (w.e.f. 18 -3-1950). 5. Subs. by Act 33 of 1959, s. 7, for certain words (w.e.f. 1 -10- 1959). 6. Subs. by s. 7, ibid., for sub -section ( 2) (w.e.f. 1 -10-1959). 7. Subs. by Act 36 of 1962, s. 2, for certain words (w.e.f. 16 -9-1962). 8. The word calendar omitted by Act 66 of 1988, s. 7 (w.e.f. 30 -12-1988). 9. Ins. by Act 36 of 1962, s. 2 (w.e.f. 16 -9-1962). 19 (3) In t he case of any banking company to which the provisions of sub -section ( 2) do not apply, the aggregate value of its paid -up capital and reserves shall not be less than (i) if it has places of business in more than one State, five lakhs of rupees, and if an y such place or places of business is or are situated in the city of Bombay or Calcutta or both, ten lakhs of rupees; (ii) if it has all its places of business in one State none of which is situated in the city of Bombay or Calcutta, one lakh of rupees in respect of its principal place of business, plus ten thousand rupees in respect of each of its other places of business situated in the same district in which it has its principal place of business, plus twenty -five thousand rupees in respect of each place of business situated elsewhere in the State otherwise than in the same district: Provided that no banking company to which this clause applies shall be required to have paid - up capital and reserves exceeding an aggregated value of five lakhs of rupees: Provided further that no banking company to which this clause applies and which has only one place of business shall be required to have paid -up capital and reserves exceeding an aggregate value of fifty thousand rupees: 1[Provided further that in the case o f every banking company to which this clause applies and which commences banking business for the first time after the commencement of the Banking Companies (Amendment) Act, 1962 (36 of 1962) , the value of its paid -up capital shall not be less than five la khs of rupees; ] (iii) if it has all its places of business in one State, one or more of which is or are situated in the city of Bombay or Calcutta, five lakhs of rupees, plus twenty -five thousand rupees in respect of each place of business situated outside the city of Bombay or Calcutta, as the case may be: Provided that no banking company to which this clause applies shall be required to have paid-up capital and reserves exceeding an aggregate value of ten lakhs of rupees. Explanation .For the purposes of this sub -section, a place of business situated 2[in a State] other than that in which the principal place of business of the banking company is situated shall, if it is not more than twenty -five miles distant from such principal place of busine ss, be deemed to be situated within the same State as such principal place of business. (4) Any amount deposited and kept deposited with the Reserve Bank under 3* sub-section ( 2) by any banking company incorporated 4[outside India] shall, in the event of the company ceasing for any reason to carry on banking busin ess 5[in India], be an asset of the company on which the claims of all the creditors of the company 5[in India] shall be a first charge. 6[(5) For the purposes of this section, (a) place of bu siness means any office, sub -office, sub - pay office and any place of business at which deposits are received, cheques cashed or moneys lent; (b) value means the real or exchangeable value, and not the nominal value which may be shown in the books of th e banking company concerned.] (6) If any dispute arises in computing the aggregate value of the paid -up capital and reserves of any banking company, a determination thereof by the Reserve Bank shall be final for the purposes of this section. 1. Ins. by Act 36 of 1962, s. 2 (w.e.f. 16 -9-1962). 2. Subs. by Act 62 of 1956, s. 2 and Sch., for in India (w.e.f. 1 - 11-1956). 3. The words the proviso to omitted by Act 33 of 1959, s. 7 (w.e.f. 1 -10-1959). 4. Subs. by Act 20 of 1950, s. 3, for elsewhere than in a State (w.e.f. 18 -3-1950). 5. Subs. by s. 3, ibid., for in the St ates(w.e.f. 18 -3-1950). 6. Subs. by Act 33 of 1959, s. 7, for sub -section ( 5) (w.e.f. 1 -10- 1959). 20 1[12. Regulati on of paid -up capital, subscribed capital and authorised capital and voting rights of
1[12. Regulati on of paid -up capital, subscribed capital and authorised capital and voting rights of shareholders. (1) No banking company shall carry on business in India, unless it satisfies the following conditions, namely: (i) that the subscribed capital of the comp any is not less than one -half of the authorised capital, and the paid - up capital is not less than one -half of the subscribed capital and that, if the capital is increased, it complies with the conditions prescribed in this clause within such period not ex ceeding two years as the Reserve Bank may allow; 2[(ii) that, notwithstanding anything contained in the Companies Act, 1956 (1 of 1956), the capital of such banking company consists of (a) equity shares only; or (b) equity shares and preferences shares: Provided that the issue of preference share shall be in accordance with the guidelines framed by the Reserve Bank specifying the class of preference shares, the extent of issue of each class of such preference shares (whether perpetual or irredeemable or re deemable), and the terms and conditions subject to which each class of preference shares may be issued: Provided further that no holder of the preference share, issued by the company, shall be entitled to exercise the voting right specified in clause ( b) of sub -section ( 2) of section 87 of the Companies Act, 1956 (1 of 1956);] 3* * * * * (2) No person holding shares in a banking company shall, in respect of any shares held by him, exercise voting rights 4[on poll] 5[in excess of 6[ten per cent]] of the total voting rights of all the share - holders of the banking company: 7[Provided that the Reserve Bank may increase, in a phased manner, such ceiling on voting rights from ten per cent. to twenty -six per cent.] (3) Notwithstanding anything contained in any law for the time being in force or in any contract or instrument no suit or other proceeding shall be maintained against any person registered as the holder of a share in a banking company on the ground that the title to the said share vests in a pers on ot her than the registered holder: Provided that nothing contained in this sub -section shall bar a suit or other proceeding (a) by a transferee of the share on the ground that he has obtained from the registered holder a transfer of the share in accorda nce with any law relating to such transfer; or (b) on behalf of a minor or a lunatic on the ground that the registered holder holds the share on behalf of the minor or lunatic. (4) Every chairman, managing director or chief executive officer by whatever na me called of a banking company shall furnish to the Reserve Bank through that banking company returns containing full particulars of the extent and value of his holding of shares, whether directly or indirectly, in the banking company and of any change in the extent of such holding or any variation in the rights attaching thereto and such other information relating to those shares as the Reserve Bank may, by order, require and in such form and at such time as may be specified in the order.] 1. Subs. by Act 95 of 1956, s. 3, for section 12 (w.e.f. 14 - 1-1957). 2. Subs. by Act 4 of 2013, s. 3, for clause ( ii) (w.e.f. 18 -1-2013). 3. The proviso o mitted by s. 3, ibid. (w.e.f. 18 -1-2013). 4. Ins. by Act 33 of 1959, s. 8 (w.e.f. 1 -10-1959). 5. Subs. by Act 55 of 1963, s. 9, for in excess of five per cent. (w.e.f. 1 -2-1964). 6. Subs. by Act 20 of 1994, s. 6, for one per cent. (w.e.f. 31 -1-1994). 7. Ins. by Act 4 of 2013, s. 3 (w.e.f. 18 -1-2013). 21 1[12A. Election of new directors .(1) The Reserve Bank may, by order, require any banking company to call a general meetin g of the share holders of the company within such time, not less than two months from the date of the order, as may be specified in the order or withi n such further time as the Reserve Bank may allow in this behalf, to elect in accordance with the voting rights permissible under this Act fresh directors, and the banking company shall be bound to comply with the order. (2) Every director elected under su b-section ( 1) shall hold office until the date up to which his predecessor would have held office, if the election had not been held. (3) Any election duly held under this section shall not be called in question in any court.] 2[12B. Regulation of acquisit ion of shares or voting rights .(1) No person (hereinafter referred to as the applicant ) shall, except with the previous approval of the Reserve Bank, on an application being made, acquire or agree to acquire, directly or indirectly, by himself or acting in concert with any other person, shares of a banking company or voting rights therein, which acquisition taken together with shares and voting rights, if any, held by him or his relative or associate enterprise or person acting in concert with him, makes the applicant to hold five per cent. or more of the paid -up share capital of such banking company or entitles him to exercise five per cent. or more of the voting rights in such banking company. Explanation 1.For the purposes of this sub -section, (a) associate enterprise means a company, whether incorporated or not, which, (i) is a holding company or a subsidiary company of the applicant; or (ii) is a joint venture of the applicant; or (iii) controls the composition of the Board of Directors or other body governing the applicant; or (iv) exercises, in the opinion of the Reserve Bank, significant influence on the applicant in taking financial or policy decisions; or (v) is able to obtain economic benefits from the activities of the applicant; (b) relative shall have the meaning assigned to it in section 6 of the Companies Act, 1956 (1 of 1956); (c) persons shall be deemed to be acting in concert who, for a common objective or purpose of acquisition of shares or voting rights in excess of the percentage mentioned in this sub -section, pursuant to an agreement or understanding (formal or informal), directly or indirectly cooperate by acquiring or agreeing to acquire shares or voting rights in the banking company. Explanation 2.For the purpo ses of this Act, joint venture means a legal entity in the nature of a partnership engaged in the joint undertaking of a particular transaction for mutual profit or an association of persons or companies jointly undertaking some commercial enterprise where in all contribute assets and share risks. (2) An approval under sub -section ( 1) may be granted by the Reserve Bank if it is satisfied that (a) in the public interest; or (b) in the interest of banking policy; or (c) to prevent the affairs of any banking c ompany being conducted in a manner detrimental or prejudicial to the interests of the banking company; or (d) in view of the emerging trends in banking and international best practices; or 1. Ins. by Act 95 of 1956, s. 4 (w.e.f. 14 -1-1957). 2. Ins. by Act 4 of 2013, s. 4 (w.e.f. 18 -1-2013). 22 (e) in the interest of the banking and financial system in India, the applicant is a fit and proper person to acquire shares or voting rights: Provided that the Reserve Bank may call for such information from the applicant as it may deem necessary for considering the application referred to in sub -section ( 1): Provided further that the Reserve Bank may specify different criteria for acquisition of shares or voting rights in different percentages. (3) Where the acquisition is by way of transfer of shares of a banking company and the Reserve Bank is satisfied that such tra nsfer should not be permitted, it may, by order, direct that no such share shall be transferred to the proposed transferee and may further direct the banking company not to give effect to the transfer of shares and in case the transfer has been registered, the transferee shall not be entitled to exercise voting rights on poll in any of the meetings of the banking company. (4) The approval for acquisition of shares may be subject to such conditions as the Reserve Bank may deem fit to impose, including a cond ition that any further acquisition of shares shall require prior approval of the Reserve Bank and that the applicant continues to be a fit and proper person to hold the shares or voting rights. (5) Before issuing or allotting any share to any person or reg istering the transfer of shares in the name of any person, the banking company shall ensure that the requirements of sub -section ( 1) are complied with by that person and where the acquisition is with the approval of the Reserve Bank, the banking company sh all further ensure that the conditions imposed under sub -section ( 4), if any, of such approval are fulfilled. (6) The decision of the Reserve Bank on the application made under sub -section ( 1) shall be taken within a period of ninety days from the date of receipt of the application by the Reserve Bank: Provided that in computing the period of ninety days, the period taken by the applicant for furnishing the information called for by the Reserve Bank shall be excluded. (7) The Reserve Bank may specify the m inimum percentage of shares to be acquired in a banking company if it considers that the purpose for which the shares are proposed to be acquired by the applicant warrants such minimum shareholding. (8) The Reserve Bank may, if it is satisfied that any per son or persons acting in concert with him holding shares or voting rights in excess of five per cent. of the total voting rights of all the shareholders of the banking company, are not fit and proper to hold such shares or voting rights, pass an order directing that such person or persons acting in concert with him shall not, in the aggregate, exercise voting rights on poll in excess of five per cent. of the total voting rights of all the shareholders of the banking company: Provided that the Reserve Bank s hall not pass any such order without giving an opportunity of being heard to such person or persons acting in concert with him.] 13. Restriction on commission, brokerage, discount, etc., on sale of shares .Notwithstanding anything to the contrary containe d in 1[sections 76 and 79 of the Companies Act, 1956 (1 of 1956)], no banking company shall pay out directly or indirectly by way of commission, brokerage, discount or remuneration in any form in respect of any shares issued by it, any amount exceeding in the aggregate two and one -half per cent. of the 2[price at wh ich the said shares are issued]. 3[Explanation .For the removal of doubts, it is hereby declared that the expression price at which the said shares are issued shall include amount or value of p remium on such shares.] 1. Subs. by Act 95 of 1956, s. 14 and Sch. I, for sections 105 and 105A of the Indian Companies Act , 1913 (7 of 1913) (w.e.f. 14 -1-1957). 2. Subs. by Act 4 of 2013, s. 5, for paid -up value of the said shares (w.e.f. 18 -1-2013). 3. Ins. by s. 5, ibid. (w.e.f. 18 -1-2013). 23 14. Prohibition of charge on unpaid capital .No banking company shall create any charge upon any unpaid capital of the company, and any such charge shall be invalid. 1[14A. Prohibition of floating charge on assets . (1) Notwithstan ding anything contained in section 6, no banking company shall create a floating charge on the undertaking or any property of the company or any part thereof, unless the creation of such floating charge is certified in wri ting by the Reserve Bank as not being detrimental to the interest s of the depositors of such com pany. (2) Any such charge created without obtaining the certificate of the Reserve Bank shall be invalid. (3) Any banking company aggrieved by the refusal of a certificate under sub -section ( 1) may, within ninety days from the date on which such refusal is communicated to it, appeal to the Central Government. (4) The decision of the Central Government where an appeal has been perferred to it under sub - section ( 3) or of the Reserve Bank where no s uch appeal has been preferred shall be final.] 15. Restrictions as to payment of dividend .2[(1)] No banking company shall pay any dividend on its shares until all its capitalised expenses (including preliminary expenses, organisation expenses, share -selling commission, brokerage, amounts of losses incurred and any other item of expenditure not represented by tangible assets) have been completely writ ten off. 3[(2) Notwithstanding anything to the contrary contained in sub - section ( 1) or in the Companies Act, 1956 (1 of 1956), a banking company may pay dividends on its shares without writing off (i) the depreciation, if any, in the value of its investments in approved securities in any case where such depreciation has not actually been capitalised or other wise accounted for as a loss; (ii) the depreciation, if any, in the value of its investments in shares, debentures or bonds (other than approved securities) in any case where adequate provision for such depreciation has been made to the satisfaction of the auditor of the banking company; (iii) the bad debts, if any, in any case where adequate provision for such debts has been made to the satisfaction of the auditor of the banking company.] 4[16. Prohibition of common directors .5[(1) No banking company inco rporated in India shall have as a director in its Board of directors any person who is a director of any other banking company. (1A) No banking company referred to in sub -section ( 1) shall have in its Board of directors, more than three directors who are directors of companies which among themselves are entitled to exercise voting right s in excess of twenty per cent. of the total voting rights of all the shareholders to that banking company.] (2) If immed iately before the commencement of the Banking Compani es (Amendment) Act, 1956 (95 of 1956), any person holding office as a director of a banking
ment) Act, 1956 (95 of 1956), any person holding office as a director of a banking company is also a director of companies which among themselves are entitled to exercise voting rights in excess of twenty per cent. of the total voting rights of al l the share -holders of the banking company , he shall, within such period from such commencement as the Reserve Bank may specify in this behalf (a) either resign his office as a director of the banking company; or (b) choose such number of companies as amo ng themselves are not entitled to exercise voting rights in excess of twenty per cent. of the total voting rights of all the share -holders of the banking 1. Ins. by Act 33 of l959, s. 9 (w.e.f. 1.10.1959). 2. S. 15 was re -numbered as sub-section ( 1) of that section by s. 10, ibid. (w.e.f. 1 -10-1959). 3. Ins. by Act 33 of 1959, s. 10 (w.e.f. 1 -10-1959). 4. Subs. by Act 95 of 1956, s. 5, for s. 16 (w.e.f. 14 -1-1957). 5. Subs. by Act 20 of 1994, s. 7, for sub -section ( 1) (w.e.f. 31 -1-1994). 24 company as companies in which he wishes to continue to hold the office of a director and resign his office as a director in the other companies.] 1[(3) Nothing in sub -section ( 1) shall apply to, or in relation to, any director appointed by the Reserve Bank.] 2[17. Reserve Fund .(1) Every banking company incorporated in India shal l create a reserve fund and 3* shall, out of the balance of profit of each year as disclosed in the profit and loss account prepared under section 29 and before any dividend is declared, transfer to the reserve fund a sum equivalent to not less than twenty per cent. of such profit . 4[(1A) Notwithstanding anything contained in sub -section ( 1), the Central Government may, on the recommendation of the Reserve Bank and having regard to the adequacy of the paid -up capital and reserves of a banking company in relation to its deposit liab ilities, declare by order in writing that the provisions of sub -section ( 1) shall not apply to the banking company for such period as may be specified in the order: Provided that no such order shall be made unless, at the time it is made, the amount in the reserve fund under sub -section ( 1), together with the amount in the share premium account is not less than the paid-up capital of the banking company.] (2) Where a banking company appropriates any sum or sums from the reserve fund or the share premium acc ount, it shall, within twenty -one days from the date of such appropriation, report the fact to the Reserve Bank, explaining the circumstances relating to such appropriation: Provided that the Reserve Bank may, in any particular case, extend the said period of twenty -one days by such period as it thinks fit or condone any delay in the making of such report. 5[18. Cash reserve .(1) Every banking company, not being a scheduled bank, 6[shall maintain in India on a daily basis] by way of cash reserve with itsel f or by way of balance in a current account with the Reserve Bank , or by way of net balance in current accounts or in one or more of the aforesaid ways, a sum equivalent to 7[such per cent. ] of the total of its demand and time liabilities in India as on th e last Friday of the second preceding fortnight 8[as the Reserve Bank may specify, by notification in the Official Gazette, from time to time, having regard to the needs of securing the monetary stability in the country] and shall submit to the Reserve Ban k before the twentieth day of every month a return showing the amount so held on alternate Fridays during a month with particulars of its demand and time liabilities in India on such Fridays or if any such Friday is a public holiday under the Negotiable Instruments Act, 1881 (26 of 1881), at the close of business on the preceding working day. Explanation .In this section, and in section 24, (a) liabilities in India shall not include (i) the paid -up capital or the reserves or any credit balance in the p rofit and loss account of the banking company; (ii) any advance taken from the Reserve Bank 9* or from the Exim Bank 10[or from the Reconstruction Bank 11[or from the National Housing Ban k]] or from the National Bank 12[, or from the small Industries Bank ,13[or from the National Bank for Fina ncing Infrastructure and Development or from the other development financial institution ]] by the banking company; 1. Ins. by Act 58 of 1968, s. 4 (w.e.f. 1 -2-1969). 2. Subs. by Act 33 of 1959, s. 11, for ss. 17 and 18 (w.e.f. 1 -10-1959). 3. Certain words omitted by Act 36 of 1962, s. 3 (w.e.f. 16 -9-1962). 4. Ins. by s. 3, ibid. (w.e.f. 16 -9-1962). 5. Subs. by A ct 1 of 1984, s. 21, for section 18 (w.e.f. 29 -3-1985). 6. Subs. by Act 4 of 2013, s. 6, for shall maintain in India (w.e.f. 18 -1-2013). 7. Subs. by s. 6, ibid., for at least three per cent. (w.e.f. 18 -1-2013). 8. Ins. by s. 6, ibid. (w.e.f. 18 -1-2013 ). 9. The words or from the Development Bank omitted by s. 6, ibid. (w.e.f. 18 -1-2013). 10. Ins. by Act 62 of 1984, s. 71 and the Third Schedule (w.e.f. 20 -3-1985). 11. Ins. by Act 53 of 1987, s. 56 and the Second Schedule (w.e.f. 9 -7-1988). 12. Ins. by Act 39 of 1989, s. 53 and the Second Schedule (w.e.f. 7 -3-1990). 13. Ins. by Act 17 of 2021, s. 48 and the third Schedule ( w.e.f. 19-4-2021). 25 (iii) in the case of a Regional Rural Bank, also any loan taken by such bank from its Sponsor Bank; (b) fortnight shall mean the period from Saturday to the second following Friday, both days inclusive; (c) net balance in curren t accounts shall, in relation to a banking company, mean the excess, if any, of the aggregate of the credit balances in current account maintained by that banking company with the State Bank of India or a subsidiary bank or a corresponding new bank over t he aggregate of the credit balances in current account held by the said banks with such banking company; (d) for the purposes of computation of liabilities, the aggregate of the liabilities of a banking company to the State Bank of India, a subsidiary bank , a corresponding new bank, a regional rural bank, another banking company, a co -operative bank or any other financial institution notified by the Central Government in this behalf, shall be reduce by the aggregate of the liabilities of all such banks inst itutions to the banking company; (e) the expression co-operative bank shall have the meaning assigned to it in clause ( cci) of section 56. 1[(1A) If the balance held by such banking company at the close of business on any day is below the minimum specifi ed under sub -section ( 1), such banking company shall, without prejudice to the provisions of any other law for the time being in force, be liable to pay to the Reserve Bank, in respect of that day, penal interest at a rate of three per cent. above the bank rate on the amount by which such balance falls short of the specified minimum, and if the s hortfall continues further, the penal interest so charged shall be increased to a rate of five per cent. above the bank rate in respect of each subsequent day durin g which the default continues. (1B) Notwithstanding anything contained in this section, if the Reserve Bank , is satis fied, on an application in writing by the defaulting banking company, that such defaulting banking company had sufficient cause for its fai lure to company with the provisions of sub -section ( 1), it may not demand the payment of the penal interest. (1C) The Reserve Bank may, for such period and subject to such conditions as may be specified, grant to any banking company such exemptions from th e provisions of this section as it thinks fit with reference to all or any of its offices or with reference to the whole or any part of its assets and liabilities.] (2) The Reserve Bank may, for the purposes of this section and section 24, specify from tim e to time, with reference to any transaction or class of transactions, that such transaction or transactions shall be regarded as liability in India of a banking company and, if any question arises as to whether any transaction or class of transactions sha ll be regarded for the purposes of this section and section 24 as liability in India of a banking company, the decision of the Reserve Bank thereon shall be final.] 19. Restriction on nature of subsidiary companies .2[(1) A banking company shall not form any subsidiary company except a subsidiary company formed for one or more of the following purposes, namely: (a) the undertaking of any business which, under clauses ( a) to ( o) of sub -section ( 1) of section 6, is permissible for a banking company to und ertake, or 1. Ins. by Act 4 of 2013, s. 6 (w.e.f. 18 -1-2013). 2. Subs. by Act 1 of 1984, s. 22, for sub -section ( 1) (w.e.f. 15 -2-1984). 26 (b) with the previous permission in writing of the Reserve Bank, the carrying on of the business of banking exclusively outside India, or (c) the undertaking of such other business, which the Reserve Bank may, with the prior approval of the Cent ral Government, consider to be conducive to the spread of banking in India or to be otherwise useful or necessary in the public interest. Explanation .For the purposes of section 8, a banking company shall not be deemed, by reason of its forming or having a subsidiary company, to be engaged indirectly in the business carried on by such subsidiary company.] (2) Save as provided in sub -section ( 1), no banking company shall hold shares in any company, whether as pledgee, mortgagee or absolute owner, of an amou nt exceeding thirty per cent. of the paid-up share capital of that company or thirty per cent. of its own paid -up share capital and reserves, whichever is less: Provided that any banking company which is on the date of the commencement of this Act holding any shares in contravention of the provisions of this sub -section shall not be liable to any penalty therefor if it reports the matter without delay to the Reserve Bank and if it brings its holding of shares into conformity with the said provisions within such period, not exceeding two years, as the Reserve Bank may think fit to allow. (3) Save as provided in sub -section ( 1) and notwithstanding anything contained in sub -section (2), a banking company shall not, after the expiry of one year from the date of the commencement of this Act, hold shares, whether as pledgee, mortgagee or absolute owner, in any company in the management of which any managing director or manager of the banking company is in any manner concerned or interested. 1[(4) Save as provided i n clause ( c) of sub -section ( 1), a banking company may form a subsidiary company to carry on the business of credit information in accordance with the Credit Information Companies (Regulation) Act, 2005 (30 of 2005)] 2[20. Restrictions on loans and advance s.(1) Notwithstanding anything to the contrary contained in section 77 of the Companies Act, 1956, (1 of 1956 ) no banking company shall, (a) grant any loans or advances on the security of its own shares, or (b) enter into any commitment for granting any loan or advance to or on behalf of (i) any of its directors, (ii) any firm in which any of its directors is interested as partner, manager, employee or guarantor, or (iii) any company (not being a subsidiary of the banking company or a company registered under section 25 of the Companies Act, 1956 (1 of 1956), or a Govern ment company) of which 3[, or the subsidiary or the holding comp any of which] any of the directors of the banking company is a director, managing agent, manager, employee or guarantor or i n which he holds substantial interest, or (iv) any individual in respect of whom any of its directors is a partner or guarantor. (2) Where any loan or advance granted by a banking company is such that a commitment for granting it could not have been made if clause ( b) of sub -section ( 1) had been in force on the date on which the loan or advance was made, or is granted by a banking company after the commencement of section 5 of the Banking Laws (Amendment) Act, 1968 (58 of 1968) , but in pursuance of a commi tment entered into before such commencement, steps shall be taken to recover the amounts due to the banking 1. Ins. by Act 30 of 2005, s. 34 and the Schedule (w.e.f. 14 -12-2006). 2. Subs. by Act 58 of 1968, s. 5, for section 20 (w.e.f. 1 -2-1969). 3. Ins. by Act 1 of 1984, s. 23 (w.e.f. 15 -2-1984). 27 company on account of the loan or advance together with interest, if any, due thereon within the period stipulated at the time
7 company on account of the loan or advance together with interest, if any, due thereon within the period stipulated at the time of the grant of the l oan or advance, or where no such period has been stipulated, before the expiry of one year from the commencement of the said section 5: Provided that the Reserve Bank may, in any case, on an application in writing made to it by the banking company in this behalf, extend the period for the recovery of the loan or advance until such date, not being a date beyond the period of three years from the commencement of the said section 5, and subject to such terms and conditions, as the Reserve Bank may deem fit: Provided further that this sub -section shall not apply if and when the director concerned vacates the office of the director of the banking company, whether by death, retirement, resignation or otherwise. (3) No loan or advance, referred to in sub -section ( 2), or any part thereof shall be remitted without the previous approval of the Reserve Bank, and any remission without such approval shall be void and of no effect. (4) Where any loan or advance referred to in sub -section ( 2), payable by any person, has not been repaid to the banking company within the period specified in that sub -section, then, such person shall, if he is a director of such banking company on the date of the expiry of the said period, be deemed to have vacated his office as such on the said date. Explanation .In this section (a) loans or advance shall not include any transaction which the Reserve Bank may, having regard to the nature of the transaction, the period within which, and the manner and circumstances in which, any amount due on account of the transaction is likely to be realised, the interest of the depositors and other relevant considerations, specify by general or special order as not being a loan or advance for the purpose of this section; (b) director includes a member of a ny board or committee in India constituted by a banking company for the purpose of managing, or for the purpose of advising it in regard to the management of, all or any of its affairs. (5) If any question arises whether any transaction is a loan or advanc e for the purposes of this section, it shall be referred to the Reserve Bank, whose decision thereon shall be final.] 1[20A. Restrictions on power to remit debts .(1) Notwithstanding anything to the contrary contained in section 293 of the Companies Act, 1 956, (1 of 1956) a banking company shall not, except with the prior approval of the Reserve Bank, remit in whole or in part any debt due to it by (a) any of its directors, or (b) any firm or company in which any of its directors is interested as director, partner, managing agent or guarantor, or (c) any individual if any of its directors is his partner or guarantor. (2) Any remission made in contravention of the provisions of sub -section ( 1) shall be void and of no effect.] 21. Power of Reserve Bank to con trol advances by banking companies .(1) Where the Reserve Bank is satisfied that it is necessary or expedient in the public interest 2[or in the interests of depositors] 3[or banking policy] so to do, it may determine the policy in relation to advances to be followed by banking companies generally or by any banking company in particular, and when the 1. Ins. by Act 55 of 1963, s. 12 (w.e.f. 1 -2-1964). 2. Ins. by s.13, ibid. (w.e.f. 1 -2-1964). 3. Ins. by Act 58 of 1968, s. 6 (w.e .f. 1-2-1969). 28 policy has been so determined, all banking companies or the banking company concerned, as the case may be, shall be bound to follow the policy as so determined . (2) Without prejudice to the generality of the power vested in the Reserve Bank under sub -section (1), the Reserve Bank may give directions to banking companies, either generally or to any banking company or group of banking companies in particular, 1[as to (a) the purposes for which advances may or may not be made, (b) the margins to be maintained in respect of secured advances, (c) the maximum amount of advances or other financial accommodation which, having regard to the paid -up capital, reserves and deposits of a banking company and other relevant considerations, may be made by that banking company to any one company, firm, association of persons or individual, (d) the maximum amount up to which, having regard to the considerations referred to in clau se (c), guarantees may be given by a banking company on behalf of any one company, firm, association of persons or individual, and (e) the rate of interest and other terms and conditions on which advances or other financial accommodation may be made or gua rantees may be given.] 2[(3) Every banking company shall be bound to comply with any directions given to it under this section.] 3[21A. Rates of interest charged by banking companies not to be subject to scrutiny by courts .Notwithstanding anything contai ned in the Usurious Loans Act, 1918 (10 of 1918), or any other law relating to indebtedness in force in any State, a transaction between a banking company and its debtor shall not be re -opened by any Court on the ground that the rate of interest charged by the banking company in respect of such transaction is excessive.] 22. Licensing of banking companies .4[(1) Save as hereinafter provided, no company shall carry on banking business in India unless it holds a licence issued in that behalf by the Reserve Ba nk and any such licence may be issued subject to such conditions as the Reserve Bank may think fit to impose.] (2) Every banking company in existence on the commencement of this Act, before the expiry of six months from such commencement, and every other c ompany befor e commencing banking business 5[in India], shall apply in writing to the Reserve Bank for a licence under this section: Provided that in the case of a banking company in existence on the commencement of this Act, nothing in sub -section ( 1) sha ll be deemed to prohibit the company from carrying on banking business until it is gran ted a licence in pursuance of 6[this section] or is by notice in writing informed by the Reserve Bank that a licence cannot be granted to it: Provided further that the R eserve Bank shall not give a notice as aforesaid to a banking company in existence on the commencement of this Act before the expiry of the three years referred to in sub - section ( 1) of section 11 or of such further period as the Reserve Bank may under th at sub -section think fit to allow. 1. Subs. by Act 55 of 1963, s. 13, for certain words (w.e.f. 1.2.1964). 2. Ins. by s. 13, ibid. (w.e.f. 1 -2-1964). 3. Ins. by Act 1 of 1984 s. 24 (w.e.f. 15.2.1984). 4. Subs. by Act 33 of 1959, s. 13, for sub -section ( 1) (w.e.f. 1 - 10-1959). 5. Subs. by Act 20 of 1950, s. 3, for in any State (w.e.f.18 -3-1950). 6. Subs. by Act 33 of 1959, s. 13, for sub -section ( 2) (w.e.f. 1 - 10-1959). 29 (3) Before granting any licence under this section, the Reserve Bank may require to be satisfied by an inspection of the books of the company or otherwise that 1*** the following conditions are fulfilled, namely: 2[(a) that the company is or will be in a position to pay its present or future depositors in full as their claims accrue; (b) that the affairs of the company are not being, or are not likely to be conducted in a manner detrimental to the interests of its present or future depositor s;] 3[(c) that the general character of the proposed management of the company will not be prejudicial to the public interest or the interest of its depositors; (d) that the company has adequate capital structure and earning prospects; (e) that the public interest will be served by the grant of a licence to the company to carry on banking business in India; (f) that having regard to the banking facilities available in the proposed principal area of operations of the company, the potenti al scope for expansion of banks already in existence in the area and other relevant factors the grant of the licence would not be prejudicial to the operation and consolidation of the banking system consistent with monetary stability and economic growth; (g) any other condition, the fulfilment of which would, in the opinion of the Reserve Bank, be necessary to ensure that the carrying on of banking business in India by the company will not be prejudicial to the public interest or the interests of the deposi tors.] 4[(3A) Before granting any licence under this section to a company incorporated outside India, the Reserve Bank may require to be satisfied by an inspection of the books of the company or otherwise that the conditions specified in sub -section ( 3) are fulfilled and that the carrying on of banking business by such company in India will be in the public interest and that the Government or law of the country in which it is incorporated does not discriminate in any way against banking companies registere d in India and that the company complies with all the provisions of this Act applicable to banking companies incorporated outside India.] 5[(4) The Reserve Bank may cancel a licence granted to a banking company under this section (i) if the company ceases to carry on banking business in India; or (ii) if the company at any time fails to comply with any of the conditions imposed upon it under sub-section ( 1); or (iii) if at any time, any of the conditions r eferred to in sub -section ( 3) 4[and sub -section ( 3A)] is not fulfilled: Provided that before cancelling a licence under clause ( ii) or clause ( iii) of this sub -section on the ground that the banking company has failed to comply with or has failed to fulfil any of the conditions referred to therein, the R eserve Bank, unless it is of opinion that the delay will be prejudicial to the interests of the company's depositors or the public, shall grant to the company on such terms as it may specify, an opportunity of taking the necessary steps for complying with or fulfilling such condition. 1. The words all or any of omitted by Act 1 of 1984, s. 25(w.e.f. 15 -2-1984). 2. Subs. by Act 33 of 1959 s. 13, ibid., for clauses ( a) and ( b) (w.e.f. 1 -10-1959). 3. Subs. by Act 1 of 1984, s. 25, for clause ( c) (w.e.f. 15 -2-1984). 4. Ins. by s. 25, ibid. (w.e.f. 15 -2-1984). 5. Subs. by Act 33 of 1959, s. 13, for sub -sections ( 4) and ( 5) (w.e.f. 1 -10-1959). 30 (5) Any banking company aggrieved by the decision of the Reserve Bank cancelling a licence under this section may, within thirty days from the date on which such decision is communicated to it, appeal to the Central Government . (6) The decision of the Central Government where an appeal has been preferred to it under sub-section ( 5) or of the Reserve Bank where no such appeal has been preferred shall be final.] 1[23. Restrictions on opening of new and transfer of existing, plac es of business .(1) Without obtaining the prior permission of the Reserve Bank (a) no banking company shall open a new place of business in India or change otherwise than within the same city, town or village, the location of an existing place of business situated in India; and (b) no banking company incorporated in India shall open a new place of business outside India or change, otherwise than within the same city, town or village in any country or area outside India, the location of an existing place of business situated in that country or area: Provided that nothing in this sub -section shall apply to the opening for a period not exceeding one month of a temporary place of business within a city, town or village or the environs thereof within which the b anking company already has a place of business for the purpose of affording banking facilities to the public on the occasion of an exhibition, a conference or a mela or any other like occasion. (2) Before granting any permission under this section, the Res erve Bank may require to be satisfied by an inspection under section 35 or otherwise as to the financial condition and history of the company, the general character of its management, the adequacy of its capital structure and earning prospects and that pub lic interest will be served by the opening or, as the case may be, change of location, of the place of business. (3) The Reserve Bank may grant permission under sub -section ( 1) subject to such conditions as it may think fit to impose either generally or wi th reference to any particular case. (4) Where, in the opinion of the Reserve Bank, a banking company has, at any time, failed to comply with any of the conditions imposed on it under this section, the Reserve Bank may, by order in writing and after afford ing reasonable opportunity to the banking company for showing cause against the action proposed to be taken against it, revoke any permission granted under this section. 2[(4A) Any regional rural bank requiring the permission of the Reserve Bank under thi s section shall forward its application to the Reserve Bank through the National Bank which shall give its comments on the merits of the application and send it to the Reserve Bank: Provided that the regional rural bank shall also send an advance copy of t he application directly to the Reserve Bank.] (5) For the purposes of this section place of business includes any sub -office, pay office, sub -pay office and any place of business at which deposits are received, cheques cashed or moneys lent.] 24. Mainten ance of a percentage of assets .3* * * * * 4[(2A) A scheduled bank, in addition to the average daily balance which it is, or may be, required to maintain under section 42 of the Reserve Bank of India Act, 1934 (2 of 1934) and every other banking company, in addition to the cash reserve which it is required to maintain under section 18, shall maintain in India, assets, the value of which shall not be less
reserve which it is required to maintain under section 18, shall maintain in India, assets, the value of which shall not be less than such percentage not exceeding forty per cent. of the total of its demand and time liabilities in India as on the last Friday of the second 1. Subs. by Act 33 of 1959, s. 14, for section 23 (w.e.f. 1 -10-1959). 2. Ins. by Act 61 of 1981, s. 61 and the Second Schedule (w.e.f. 1 -5-1982). 3. Omitted by Act 17 of 2007, s. 2 (w.e.f. 23 -1-2007). 4. Subs. by s. 2, ibid., for sub -section ( 2A) (w.e. f. 23-1-2007). 31 preceding fortnight as the Reserve Bank may, by notification in the Official Gazette, specify from time to time and such assets shall be maintained, in such form and manner, as may be specified in such notification .] 1* * * * * 2[(3) For the purpose of ensuring compliance with the provisions of this section, every banking company shall, not later than twenty days after the end of the month to which it relates, furnish to the Reserve Bank in the prescribed fo rm and manner a monthly return showing particulars of its assets maintained in accordance with this section, and its demand and time liabilities in India at the close of business on each alternate Friday during the month, or if any such Friday is a public holiday, at the close of business on the preceding working day: Provided that every Regional Rural Bank shall also furnish a copy of the said return to the National Bank. (4) (a) If on any alternate Friday or, if such Friday is a public holiday, on the pr eceding working day, the amount maintained by a banking company at the close of business on that day falls below the minimum prescribed by or under 3* sub-section ( 2A), such banking company shall be liable to pay to the Reserve Bank in respect of that da y's default, penal interest for that day at the rate of three per cent. per annum above the bank rate on the amount by which the amount actually maintained falls short of the prescribed minimum or that day; and (b) if the default occurs again on the next s ucceeding alternate Friday, or, if such Friday is a public holiday, on the preceding working day, and continues on succeeding alternate Fridays or preceding working days, as the case may be, the rate of penal interest shall be increased to a rate of five p er cent. per annum above the bank rate on each such shortfall in respect of that alternate Friday and each succeeding alternate Friday or preceding working day, if such Friday is a public holiday, on which the default continues. (5) (a) Without prejudice t o the provisions of sub -section ( 3), the Reserve Bank may require a banking company to furnish to it a return in the form and manner specified by it showing particulars of its assets maintained in accordance with this section and its demand and time liabil ities in India, as at the close of business on each day of a month; and (b) without prejudice to the provisions of sub -section ( 4), on the failure of a banking company to maintain as on any day, the amount so required to be maintained by or under 3* sub-section ( 2A) the Reserve Bank may, in respect of such default, require the banking company to pay penal interest for that day as provided in clause ( a) of sub -section ( 4) and if the default continues on the next succeeding working day, the penal interest m ay be increased as provided in clause ( b) of sub -section ( 4) for the concerned days. (6) (a) The penalty payable under sub -section ( 4) and sub -section ( 5) shall be paid within a period of fourteen days from the date on which a notice issued by the Reserve Bank demanding payment of the same is served on the banking company and in the event of failure of the banking company to pay the same within such period, the penalty may be levied by a direction of the principal civil court having jurisdiction in the area where an office of the defaulting banking company is situated, such direction to be made only upon an application made by the Reserve Bank in this behalf to the court; and (b) when the court makes a direction under clause ( a), it shall issue a certificat e specifying the sum payable by the banking company and every such certificate shall be enforceable in the same manner as if it were a decree made by the court in a suit. 1. Omitted by Act 17 of 2007, s. 2 (w.e.f. 23 -1-2007). 2. Subs. by Act 1 of 1984, s. 26, for sub -section ( 3) (w.e.f. 29 -3-1985). 3. The words, brackets and letter clause ( a) of omitted by Act 4 of 2013, s. 7 (w.e.f. 18 -1-2013). 32 (7) When under the provisions of clause ( b) of sub -section ( 4), penal interest at the increased rate of five per cent. above the bank rate has become payable by a banking company, if thereafter the amount required to be maintained on the next succeeding alternate Friday, or if such Friday is a public holiday, the next preceding working day , is still below the prescribed minimum, every director, manager or secretary of the banking company, who is knowingly and wilfully a party to the default, shall be punishable with fine which may extend to five hundred rupees and with a further fine which may extend to five hundred rupees for each subsequent alternate Friday or the preceding working day, as the case may be, on which the default continues. (8) Notwithstanding anything contained in this section, if the Reserve Bank is satisfied, on an applica tion in writing by the defaulting banking company, that the banking company had sufficient cause for its failure to comply with the provisions of 1* sub-section ( 2A), the Reserve Bank may not demand the payment of the penal interest. Explanation .In thi s section, the expression public holiday means a day which is a public holiday under the Negotiable Instruments Act, 1881 (26 of 1881).] 25. Assets in India .2[(1) The assets in India of every banking company at the close of business on the last Friday of every quarter or, if that Friday is a public holiday under the Negotiable Instruments Act, 1881 (26 of 1881), at the close of the business on the preceding working day, shall not be less than seventy -five per cent. of its demand and time liabilities in India. (2) Every banking company shall, within one month from the end of every quarter, submit to the Reserve Bank a return in the prescribed form and manner of the assets and liabilities referred to in sub-section ( 1) as at the close of business on the last Friday of the previous quarter, or, if that Friday is a public holiday under the Negotiable Instruments Act, 1881 (26 of 1881), at the close of business on the preceding working day:] 3[Provided that every regional rural bank shall also furnis h a copy of the said return to the National Bank.] (3) For the purposes of this section, 4[(a) assets in India shall be deemed to include export bills drawn in, and import bills drawn on and payable in India and expressed in such currencies as the Reser ve Bank may from time to time approve in this behalf and also such securities as the Reserve Bank may approve in this behalf notwithstanding that all or any of the said bills or securities are held outside India;] 5[(b) liabilities in India shall not inc lude the paid -up capital or the reserves or any credit balance in the profit and loss account of the banking company;] 6[(c)] quarter means the period of three months ending on the last day of March, June, September or December. 26. Return of unclaimed d eposits . Every banking company shall, within thirty days after the close of each calendar year, submit a return in the prescribed form and manner to the Reserve Bank as at the end of such calendar year of all accounts 7[in India] which have not been o perated upon for ten years, 8*: Provided that in the case of money deposited for a fixed period the said term of ten years shall be reckoned from the date of the expiry of such fixed period: 1. The wo rds, brackets and letter clause ( a) of omitted by Act 4 of 2013, s. 7 (w.e.f. 18 -1-2013). 2. Subs. by Act 33 of 1959 s. 16, for sub -sections ( 1) and ( 2) (w.e.f. 1 -10-1959). 3. Ins. by Act 61 of 1981, s. 61 and the Second Schedule (w.e.f. 1 -5-1982). 4. Su bs. by Act 20 of 1950, s. 7, for clause ( a) (w.e.f. 18 -3-1950). 5. Ins. by Act 33 of 1959, s. 16 (w.e.f. 1 -10-1959). 6. Clause ( b) relettered as clause ( c) by s. 16, ibid. (w.e.f. 1 -10-1959). 7. Subs. by Act 20 of 1950, s. 3, for in the States (w.e.f.1 8-3-1950). 8. Certain words omitted by Act 55 of 1963, s. 14 (w.e.f. 1 -2-1964). 33 1[Provided further that every regional rural bank shall also furnis h a copy of the said return to the National Bank.] 2[26A. Establishment of Depositor Education and Awareness Fund .(1) The Reserve Bank shall establish a Fund to be called the Depositor Education and Awareness Fund (hereafter in this section referred to as the Fund ). (2) There shall be credited to the Fund the amount to the credit of any account in India with a banking company which has not been operated upon for a period of ten years or any deposit or any amount remaining unclaimed for more than ten ye ars, within a period of three months from the expiry of the said period of ten years: Provided that nothing contained in this sub -section shall prevent a depositor or any other claimant to claim his deposit or unclaimed amount or operate his account or dep osit account from or with the banking company after the expiry of said period of ten years and such banking company shall be liable to repay such deposit or amount at such rate of interest as may be specified by the Reserve Bank in this behalf. (3) Where t he banking company has paid outstanding amount referred to in sub -section ( 2) or allowed operation of such account or deposit, such banking company may apply for refund of such amount in such manner as may be specified by the authority or committee referre d to in sub-section ( 5). (4) The Fund shall be utilised for promotion of depositors' interests and for such other purposes which may be necessary for the promotion of depositors interests as may be specified by the Reserve Bank fro m time to time. (5) The Reserve Bank shall, by notification in the Official Gazette, specify an authority or committee, with such members as the Reserve Bank may appoint, to administer the Fund, and to maintain separate accounts and other relevant records in relation to the Fund in such forms as may be specified by the Reserve Bank. (6) It shall be competent for the authority or committee appointed under sub -section ( 5) to spend moneys out of the Fund for carrying out the objects for which the Fund has been established.] 27. Monthly returns and power to call for other returns and information .(1) Every banking company shall , before the close of the month succeeding that to which it relates , submit to the Reserve Bank a return in the prescribed form and manne r showing its assets and liabilities 3[in India] as at the close of business on the last Friday of every month or if that Friday is a public holiday under the Negotiable Instruments Act, 1881 (26 of 1881), at the close of business on the preceding working day. 4[(2) The Reserve Bank may at any time direct a banking company to furnish it within such time as may be specified by the Reserve Bank, with such statements and information relating to the business or affairs of the banking company (including any busi ness or affairs with which such banking company is concerned) as the Reserve Bank may consider necessary or expedient to obtain for the purposes of this Act, and without prejudice to the generality of the foregoing power may call for information every half - year regarding 5[the investments of a banking company and the classification of its advances in respect of industry, commerce and agriculture].] 6[(3) Every regional rural bank shall submit a copy of the return which it submits to the Reserve Bank under s ub-section ( 1) also to the National Bank and the powers exercisable by the Reserve Bank under sub -section ( 2) may also be exercised by the National Bank in relation to regional rural banks.] 1. Ins. by Act 61 of 1981, s. 61 and the Second Schedule (w.e.f. 1 -5-1982). 2. Ins. by Act 4 of 2013, s. 8 (w.e.f. 18 -1-2013). 3. Subs. by Act 20 of 1950, s. 3, for in the St ates (w.e.f. 18 -3-1950). 4. Subs. by Act 95 of 1956, s. 6, for sub -section ( 2) (w.e.f. 14 -1- 1957). 5. Subs. by Act 33 of 1959, s. 17, for certain words (w.e.f. 1 -10- 1959). 6. Ins. by Act 61 of 1981, s. 61 and the Second Schedule (w.e.f. 1 -5-1982). 34 1[28. Power to publish information .The Reserve Bank or the Natio nal Bank, or both, if they consider it in the public interest so to do, may 2[publish (a) any information obtained by them under this Act in such cons olidated form as they think fit; (b) in such manner as they may consider pr oper, any credit information disclosed under the Credit Information Companies (Regulation) Act, 2005 (30 of 2005). ] 29. Accounts and balance -sheet .(1) At the expiration of each
(30 of 2005). ] 29. Accounts and balance -sheet .(1) At the expiration of each calendar year 3[or at the expiration of a period of twelve months ending with such date as the Central Gove rnment may, by notification in the Official Gazette, specify in this behalf,] every banking company incorporated 4[in India], in respect of all business transacted by it, and every banking company incorporated 5[outside India], in respect of all business transacted through its branches 6[in India], shall prepare with reference to 7[that year or period , as the case may be,] a balance -sheet and profit and loss account as on the last working day of 8[that year or the period, as the case may be,] in the Forms set out in the Third Schedule or as near thereto as circumstances admit: 9[Provided that with a view to facilitating the transition from one period , of accounting to another period of ac counting under this sub -section the Central Government may, by order published in the Official Gazette, make such provisions as it considers necessary or expedient for the preparation of, or for other matters relating to, the balance -sheet or profit and loss account in respect of the concerned year or period, as the case ma y be.] (2) The balance -sheet and profit and loss account shall be signed (a) in the case of a banking company incorporated 6[in India], by the manager or the principal officer of the company and where there are more than three directors of the company, by at least three of those directors, or where there are not more than three directors, by all the directors, and (b) in the case of a banking company incorporated 5[outside India] by the manager or agent of the principal office of the company 6[in India]. (3) Notwithstanding that the balance -sheet of a banking company is under sub -section ( 1) required to be prepared in a form other than the form 10[set out in Part I of Schedule VI to the Companies Act, 1956 (1 of 1956)], the requirements of that Act relating to the balance -sheet and profit and loss account of a company shall, in so far as they are not inconsistent with this Act, apply to the balance -sheet or profit and loss account, as the case may be, of a banking company. 3[(3A) Notwithstanding anything to the contrary contained in sub -section ( 3) of section 210 of the Companies Act, 1956 (1 of 1956), the period to which the profit and loss account relates shall, in the case of a banking company, be the period ending with the last w orking day of the year immediately preceding the year in which the annual general meeting is held.] 11[Explanation .In sub -section ( 3A), year means the year or, as the case may be, the period referred to in sub -section ( 1).] 1. Subs. by Act 61 of 1981, s. 61 and the Second Schedule, for s. 28 (w.e.f. 12 -7-1982). 2. Subs. by Act 30 of 2005, s. 34 and the Schedule, for certain words (w.e.f. 14 -12-2006). 3. Ins. by Act 66 of 1988, s. 8 (w.e.f. 30 -12-1988). 4. Subs. by Act 20 of 195 0, s. 3, for in a State (w.e.f.18 -3-1950). 5. Subs. by s. 3, ibid., for outside the State (w.e.f.18 -3-1950). 6. Subs. by s. 3, ibid., for in the State (w.e.f. 18 -3-1950). 7. Subs. by Act 66 of 1988, s. 8, for that year (w.e.f. 30 -12-1988). 8. Su bs. by s. 8, ibid., for the year (w.e.f. 30 -12-1988). 9. Subs. by s. 8, ibid., for the proviso (w.e.f. 30 -12-1988). 10. Subs. by Act 95 of 1956, s. 14 and Sch. for marked F in the Third Schedule to the Indian Companies Act, 1913 (7 of 1913) (w.e.f. 14 -1-1957). 11. Ins. by Act 66 of 1988, s. 8 (w.e.f. 30 -12-1988). 35 (4) The Central Government, af ter giving not less than three months notice of its intention so to do by a notification in the Official Gazette, may from time to time by a like notification amend the Forms set out in the Third Schedule. 1[29A. Power in respect of associate enterprises .(1) The Reserve Bank may, at any time, direct a banking company to annex to its financial statements or furnish to it separately, within such time and at such intervals as may be specified by the Reserve Bank, such statements and information relating to the business or affairs of any associate enterprise of the banking company as the Reserve Bank may consider necessary or expedient to obtain for the purpose of this Act. (2) Notwithstanding anything to the contrary contained in the Companies Act, 1956 (1 of 1956) , the Reserve Bank may, at any time, cause an inspection to be made of any associate enterprise of a banking company and its books of account jointly by one or more of its officers or employees or other persons along with the Board or authority regula ting such associate enterprise . (3) The provisions of sub -section s (2) and ( 3) of section 35 shall apply mutatis mutandis to the inspection under this section. Explanation .associate enterprise in relation to a banking company includes an enterprise whic h (i) is a holding company or a subsidiary company of the banking company; or (ii) is a jont venture of the banking company; or (iii) is a subsidiary company or a joint venture of the holding company of the banking company; or (iv) controls the compositio n of the Board of directors or other body governing the banking company; or (v) exercises, in the opinion of the Reserve Bank, significant influence on the banking company in taking financial or policy decisions; or (vi) is able to obtain economic benefits from the activities of the banking company. ] 30. Audit. 2[(1) The balance -sheet and profit and loss account prepared in accordance with section 29 shall be audited by a person duly qualified under any law for the time being in force to be an auditor of co mpanies.] 3[(1A) Notwithstanding anything contained in any law for the time being in force or in any contract to the contrary, every banking company shall, before appointing, re -appointing or removing any auditor or auditors, obtain the previous approval o f the Reserve Bank. (1B) Without prejudice to anything contained in the Companies Act, 1956 (1 of 1956), or any other law for the time being in force, where the Reserve Bank is of opinion that it is necessary in the pub lic interest or in the interest of the banking company or its depositors so to do, 4[it may at any time by order direct that a special audit of the banking company's accounts, for any such transaction or class of transactions or for such period or periods as may be specified in the order, sha ll be conducted and may by the same or a different order either appoint a person duly qualified under any law for the time being in force to be an auditor of companies or direct the auditor of the banking company himsel f to conduct such special audit ] and the auditor shall comply with such directions and make a report of such audit to the Reserve Bank and forward a copy thereof to the company. (1C) Th e expenses of, or incidental to 5[the special audit] specified in the order made by the Reserve Bank shall b e borne by the banking company.] 1. Ins. by Act 4 of 2013, s. 9 (w.e.f. 18 -1-2013). 2. Subs . by Act 58 of 1968, s. 8, for sub -section ( 1) (w.e.f. 1 -2- 1969). 3. Ins. by s. 8, ibid. (w.e.f. 1 -2-1969). 4. Subs. by Act 66 of 1988, s. 9, for certain words (w.e.f. 30 -12-1988). 5. Subs. by s. 9, ibid., for the audit of the transaction or class of transactions (w.e.f. 30 -12-1988). 36 (2) The auditor shall have the powers of, exercise the functions vested in, and discharge the duties and be subject to the liabilities and penalties imposed on, auditors of companies by 1[section 227 of the Companies Act, 1 956 (1 of 1956)]. 2[, and auditors, if any, appointed by the law establishing, constituting or forming the banking company concerned] . (3) In addition to the matters which under the aforesaid Act the auditor is required to state in his report, he shall, in the case of a banking company incorporated 3[in India], state in his report, (a) whether or not the information and explanations required by him have been found to be satisfactory; (b) whether or not the transactions of the company which have come to his notice have been within the powers of the company; (c) whether or not the returns received from branch offices of the company have been found adequate for the purposes of his audit; (d) whether the profit and loss account shows a true balance 4[of profit or loss] for the period covered by such account; (e) any other matter which he considers should be brought to the notice of the share holders of the company. 31. Submission of returns .The accounts and balance -sheet referred to in section 29 together with the auditor's report shall be published in the prescribed manner and three copies thereof shall be furnished as returns to the Reserve Bank within three months from the end of the period to which they refer: Provided that the Reserve Bank may in any case e xtend the said period of three months for the furnishing of such returns by a further period not exceeding three months: 5[Provided further that a regional rural bank shall furnish such retu rns also to the National Bank.] 32. Copies of balance -sheets and accounts to be sent to registrar .6[(1) Where a banking company in any year furnishes its accounts and balance -sheet in accordance with the provisions of section 31, it shall at the same time send to the registrar three copies of such accounts and balance -sheet and of the auditor's report, and where such copies are so sent, it shall not be necessary to file with the registrar, in the case of a public company, copies of the accounts and balance -sheet and of the auditor's report, and, in the case of a private company, copies of the balance -sheet and of the auditor's report as required by sub -section ( 1) of section 220 of the Companies Act, 1956 (1 of 1956); and the copies so sent shall be chargeable with the same fee and shall be dealt with in all respects as if they were filed in accordance with that section.] (2) When in pursuance of sub -section ( 2) of section 27 the Reserve Bank requires any additional statement or information in connection with the balance -sheet and accounts furnished under section 31, the banking company shall, when supplying such statement or information, send a copy thereof to the registrar. 33. Display of audited balance -sheet by companies incorporated outside India .Every banking company incorporated 7[outside India] shall, not later th an the first Monday in August of any year in which it carries on business, display in a conspicuous place in its principal office and in every 1. Subs. by Act 58 of 1968, s. 8, for section 145 of the Indian Companies Act, 1913 (7 of 1913) (w.e.f. 1 -2-1969). 2. Ins. by Act 66 of 1988, s. 9 (w.e.f. 30 -12-1988). 3. Subs. by Act 20 of 1950, s. 3, for in a State (w.e.f. 18 -3-1950). 4. Subs. by Act 55 of 1963, s. 15, for of profit and loss (w.e.f. 1 -2-1964). 5. Ins. by Act 61 of 1981, s. 61 and the Second Schedule (w.e.f. 1 -5-1982). 6. Subs. by Act 33 of 1959, s. 19, for sub -section ( 1) (w.e.f. 1 -10- 1959). 7. Subs. by Act 20 of 1950, s. 3, for outside the States (w.e.f. 18 -3-1950). 37 branch office 1[in India] a copy of its last audited balance -sheet and profit and loss account prepared under sec tion 29, and shall keep the copy so displayed until replaced by a copy of the subsequent balance -sheet and profit and loss account so prepared, and every such banking company shall display in like manner copies of its complete audited balance -sheet and pro fit and loss account relating to its banking business as soon as they are available, and shall keep the copies so displayed until copies of such subsequent accounts are available. 34. Accounting provision s of this Act not retrospective .Nothing in this Act shall apply to the preparation of accounts by a banking company and the audit and submission thereof in respect of any accounting year which has expired prior to the commencement of this Act, and notwithstanding the other provisions of this Act, such acco unts shall be prepared, audited and submitted in accordance with the law in force immediately before the commencement of this Act. 2[34A. Protection of documents of confidential nature .(1) Notwithstanding anything contained in section 11 of the Industrial Disputes Act, 1947 (14 of 1947), or any other law for the time being in force, no banking company shall, in any proceeding under the said Act or in any appeal or other proceeding arising therefrom or connected therewith, be compelled by any authority befo re which such proceeding is pending
proceeding arising therefrom or connected therewith, be compelled by any authority befo re which such proceeding is pending to produce, or give inspection of, any of its books of account or other document or furnish or disclose any statement or information, when the banking company claims that such document, statement or information is of a c onfidential nature and that the production or inspection of such document or the furnishing or disclosure of such statement or information would involve disclosure of information relating to (a) any reserves not shown as such in its published balance -sheet; or (b) any particulars not shown therein in respect of provisions made for bad and doubtful debts and other usual or necessary provisions. (2) If, in any such proceeding in relation to any banking company other than the Reserve Bank of India, any questi on arises as to whether any amount out of the reserves or provisions referred to in sub - section ( 1) should be taken into account by the authority before which such proceeding is pending, the authority may, if it so thinks fit, refer the question to the Res erve Bank and the Reserve Bank shall, after taking into account principles of sound banking and all relevant circumstances concerning the banking company, furnish to the authority a certificate stating that the authority shall not take into account any amo unt as such reserves and provisions of the banking company or may take them into account only to the extent of the amount specified by it in the certificate, and the certificate of the Reserve Bank on such question shall be final and shall not be called in question in any such proceeding. 3[(3) For the purposes of this section banking company includes the Reserve Bank, 4*** the Exim Bank, 5[the Reconstruction Bank ], 6[the National Housing Bank ], the National Bank , 7[, the Small Industries Bank 8[,the National Bank for Financing Infrastructure and Development or the other development financial institution, ]] the Stat e Bank of India, a corresponding new bank, a regional rural bank and a subsidiary bank.] ] 35. Inspection .(1) Notwithstanding anything to the contrary contained in 9[section 235 of the Companies Act, 1956 (1 of 1956)], the Reserve Bank at any time may, an d on being directed so to do by the Central Government shall, cause an inspection to be made by one or more of its officers of any banking company and its books and accounts; and the Reserve Bank shall supply to the banking company a copy of its report on such inspection. 1. Subs. by Act 20 of 1950, s. 3, f or in the States (w.e.f. 18 -3-1950). 2. Ins. by Act 23 of 1960, s. 2 (w.e.f. 26 -8-1960). 3. Subs. by Act 1 of 1984, s. 28, for sub -section ( 3) (w.e.f. 15 -2-1984). 4. The words the Development Bank omitted by Act 53 of 2003, s. 12 and the Schedule (w. e.f. 2 -7-2004). 5. Ins. by Act 62 of 1984, s. 71 and the Third Schedule (w.e.f. 20 -3-1985). 6. Ins. by Act 53 of 1987, s. 56 and the Second Schedule (w.e.f. 9 -7-1988). 7. Ins. by Act 39 of 1989, s. 53 and the Second Schedule (w.e.f. 7 -3-1990). 8. Ins. by A ct 17 of 2021, s. 48 and the third Schedule (w.e.f. 19 -4-2021). 9. Subs. by Act 95 of 1956, s. 14 and Schedule, for section 138 of the Indian Companies Act, 1913 (7 of 1913) (w.e.f. 14 -10-1957). 38 1[(1A) (a) Notwithstanding anything to the contrary contained in any law for the time being in force and without prejudice to the provisions of sub -section ( 1), the Reserve Bank, at any time, may also cause a scrutiny to be made by any on e or more of its officers, of the affairs of any banking company and its books and accounts; and (b) a copy of the report of the scrutiny shall be furnished to the banking company if the banking company makes a request for the same or if any adverse actio n is contemplated against the banking company on the basis of the scrutiny.] (2) It shall be the duty of every director or other officer 2[or employee] of the banking company to produce to any officer making an inspection under sub -section ( 1) 3[or a scr utiny under sub -section (1A)] all such books, accounts and other documents in his custody or power and to furnish him with any statements and information relating to the affairs of the banking company as the said officer may require of him within such time as the said officer may specify. (3) Any person making an inspection under sub -section ( 1) 3[or a scrutiny under sub -section ( 1A)] may examine on oath any director or other officer 2[or employee] of the banking company in relation to its business, and may administer an oath accordingly. (4) The Reserve Bank shall, if it has been directed by the Central Government to cause an inspection to be made, and may, in any other case, report to the Central Government on any inspection 4[or scrutiny] made under this section, and the Central Government, if it is of opinion after considering the report that the affairs of the banking company are being conducted to the detriment of the interests of its depositors, may, after giving such opportunity to the banking company to make a representation in connection with the report as, in the opinion of the Central Government, seems reasonable, by order in writing (a) prohibit the banking company from receiving fresh deposits; (b) direct the Reserve Bank to apply under section 38 for the winding up of the banking company: Provided that the Central Government may defer, for such period as it may think fit, the passing of an order under this sub -section, or cancel or modify any such order, upon such terms and conditions as it may think fit to impose. (5) The Central Government may, after giving reasonable notice to the banking company , publish the report submitted by the Reserve Bank or such portion thereof as may appear necessary. 4[Explanation .For the purposes of this section, the expression banking company shall include (i) in the case of a banking company incorporated outside India, all its branches in India; and (ii) in the case of a banking company incorporated in India (a) all its subsidiaries formed for the purpose of carrying on the business of banking exclusively outside India; and (b) all its branches whether situated in India or outside India.] 5[(6) The powers exercisable by the Reserve Bank under this section in relation to regional rural banks may (without prejud ice to the exercise of such powers by the Reserve Bank in relation to any regional rural bank whenever it considers necessary so to do) be exercised by the National Bank in relation to the regional rural banks, and accordingly, sub -sections ( 1) to ( 5) shal l apply in relation to regional rural banks as if every reference therein to the Reserve Bank included also a reference to the National Bank.] 1. Ins. by Act 1 of 1984, s. 29 (retrospectively). 2. Ins. by Act 55 of 1963, s. 17 (w.e.f. 1 -2-1964). 3. Ins . by Act 1 of 1984, s. 29 (w.e.f. 15 -2-1984). 4. Added by Act 33 of 1959, s. 20 (w.e.f. 1 -10-1959). 5. Ins. by Act 61 of 1981, s. 61 and the Second Schedule (w.e.f. 12 -7-1982). 39 1[35A. Power of the Reserve Bank to give directions .(1) Where the Reserve Bank is satisfied that (a) in the 2[public interest] ; or 3[(aa) in the interest of banking policy ; or] (b) to prevent the affairs of any banking company being conducted in a manner detrimental to the interests of the depositors or in a manner prejudicial to the interests of the banking compa ny; or (c) to secure the proper management o f any banking company generally, it is necessary to issue directions to banking companies generally or to any banking company in particular, it may, from time to time, issue such directions as it deems fit, and t he banking companies or the banking company, as the case may be, shall be bound to comply with such directions. (2) The Reserve Bank may, on representation made to it or on its own motion, modify or cancel any direction issued under sub -section ( 1), and in so modifying or cancelling any direction may impose such conditions as it thinks fit, subject to which the modification or cancellation shall have effect. ] 4[35AA. Power of Central Government to authorise Reserve Bank for issuing directions to banking com panies to initiate insolvency resolution process .The Central Government may, by order, authorise the Reserve Bank to issue directions to any banking company or banking companies to initiate insolvency resolution process in respect of a default, under the provisions of the Insolvency and Bankruptcy Code, 2016 (31 of 2016). Explanation .For the purposes of this section, default has the same meaning assigned to it in clause (12) of section 3 of the Insolvency and Bankruptcy Code, 2016 (31 of 2016). 35AB. P ower of Reserve Bank to issue directions in respect of stressed assets .(1) Without prejudice to the provisions of section 35A, the Reserve Bank may, from time to time, issue directions to any banking company or banking companies for resolution of stressed assets. (2) The Reserve Bank may specify one or more authorities or committees with such members as the Reserve Bank may appoint or approve for appointment to advise any banking company or banking companies on resolution of stressed assets.] 5[35B. Amendm ents of provisions relating to appointments of managing directors, etc., to be subject to previous approval of the Reserve Bank .(1) In the case of a banking company (a) no amendment of any provision relating to 4[the maximum permissible number of directo rs or] the 6[appointment or re -appointment or termination of appointment or remuneration of a chairman, a] 7[managing director or any other director, whole -time or otherwise] or of a manager or a chief executive officer by whatever name called, whether tha t provision be contained in the company's memorandum or articles of association, or in an agreement entered into by it, or in any resolution passed by the company in general meeting or by its Board of directors shall have effect unless approved by the Rese rve Bank; 8[(b) no appointment or re -appointment or termination of appointment of a chairman, a managing or whole -time director, manager or chief executive officer by whatever name called, shall have effect unless such appointment, re -appointment or termi nation of appointment is made with the previous approval of the Reserve Bank.] 9[Explanation .For the purposes of this sub -section, any provision conferring any benefit or providing any amenity or perquisite, in whatever form, whether during or after the t ermination of the term of office 10[of the chairman or the manager] or the chief executive officer by whatever name called 1. Ins. by Act 95 of 1956, s. 7 (w.e.f. 14 -1-1957). 2. Subs. by Act 7 of 1961, s. 2, for national interest (w.e.f. 24 -3-1961). 3. Ins. by Act 58 of 1968, s. 10, (w.e.f. 1 -2-1969). 4. Ins. by Act 30 of 2017, s. 2, (w.e.f. 4 -5-2017). 5. Ins. by Act 1 of 1984, s. 30 (w.e.f. 15 -2-1984). 6. Subs. by Act 58 of 1968, s. 11, ibid, for app ointment or re -appointment or remuneration of a (w.e.f. 1 -2-1969). 7. Subs. by Act 33 of 1959, s. 21, for managing or whole -time director or of a director not liable to retire by rotation (w.e.f. 1 -10-1959). 8. Subs. by Act 58 of 1968, s. 11 , for clause ( b) (w.e.f. 1 -2-1969). 9. Added by Act 33 of 1959, s. 21 (w.e.f. 1 -10-1959). 10. Subs. by Act 58 of 1968, s. 11, for of the manager (w.e.f. 1 -2- 1969). 40 or the managing director, or any other director, whole -time or otherwise, shall be deemed to be a provision relating to his remunerati on.] (2) Nothing contained in sections 1[268 and 269, the proviso to sub -section ( 3) of section 309, sections 310 and 311, the proviso to section 387, and section 388] (in so far as section 388 makes the 2[provisions of sections 269, 310] and 311 apply in relation to the manager of a company) of the Companies Act, 1956 (1 of 1956), shall 3[apply to any matter in respect of which the approval of the Reserve Bank has to be obtained under sub -section ( 1)]. 4[(2A) Nothing contained in section 198 of the Compani es Act, 1956 (1 of 1956) shall apply to a Banking company and the provisions of sub -section ( 1) of section 309 and of section 387 of that Act shall, insofar as they are applicable to a banking company, have effect as if no reference had been made in the sa id provisions to section 198 of that Act.] (3) No act done by a person 5[as chairman or a managing or whole -time director] or a director not liable to retire by rotation or a manager or a chief executive officer by
or a managing or whole -time director] or a director not liable to retire by rotation or a manager or a chief executive officer by whatever name called, shall be deemed to be invalid on the ground that it is s ubsequently discovered that his 6[appointment or re-appointment] had not taken effect by reason of any of the provisions of this Act; but nothing in this sub-section shall be construed as rendering valid any act done by such person after his 8[appointment or re-appointment] has been shown to the banking company not to have had effect.] 36. Further powers and functions of Reserve Ban k.(1) The Reserve Bank may (a) caution or prohibit banking comp anies generally or any banking company in particular against entering into any particular transaction or class of transactions, and generally give advice to any banking company; (b) on a request by the companies concerned and subject to the provisions of s ection 7[44A], assist, as intermediary or otherwise, in proposals for the amalgamation of such banking companies; (c) give assistance to any banking company by means of the grant of a loan or advance to it under clause ( 3) of sub -section ( 1) of section 18 of the Reserve Bank of India Act, 1934 (2 of 1934); 8[(d) 9[at any time, if it is satisfied that in the public interest or in the interest of banking policy or for preventing the affairs of the banking company being conducted in a mann er detrimental to the interests of the banking company or its depositors it is necessary so to do,] by order in writing and on such terms and conditions as may be specified therein (i) require the banking company to call a meeting of its directors for th e purpose of considering any matter relating to or arising out of the affairs of the banking company, or require an officer of the banking company to discuss any such matter with an officer an officer of the Reserve Bank; (ii) depute one or more of its of ficers to watch the proceedings at any meeting of the Board of directors of the banking company or of any committee or of any other body constituted by it; require that banking company to give an opportunity to the officers so deputed to be heard at such m eetings and also require such officers to send a report of such proceedings to the Reserve Bank; (iii) require the Board of directors of the banking company or any committee or any other body constituted by it to give in writing to any officer specified by the Reserve Bank in this 1. Subs. by Act 36 of 1962, s. 7, for 268, 269, 310, 311 and 388. 2. Subs. by Act 1 o f 1984, s. 30, for provisions of section 310 (w.e.f. 15 -2-1984). 3. Subs. by Act 33 of 1959, s. 21, for certain words (w.e.f. 1 -10-1959). 4. Ins. by Act 1 of 1984, s. 30 (w.e.f. 15 -2-1984). 5. Subs. by Act 58 of 1968, s. 11, for as a managing or whole -time director (w.e.f. 1 -2-1969). 6. Subs. by s. 11, ibid., for appointment (w.e.f. 1 -2-1969). 7. Subs. by Act 33 of 1959, s. 22, for 45 (w.e.f. 1 -10-1959). 8. Subs. by Act 95 of 1956, s. 8, for cl. ( d) (w.e.f. 14 -1-1957). 9. Subs. by Act 58 of 1968, s . 12, for certain words (w.e.f. 1 -2- 1969). 41 behalf at his usual address all notices of, and other communications relating to, any meeting of the Board, committee or other body constituted by it; (iv) appoint one or more of its officers to observe the manner in which the aff airs of the banking company or of its offices or branches are being conducted and make a report thereon; (v) require the banking company to make, within such time as may be specified in the order, such changes in the management as the Reserve Bank may cons ider necessary 1**.] (2) The Reserve Bank shall make an annual report to the Central Government on the trend and progress of banking in the country, with particular reference to its activities under clause ( 2) of section 17 of the Reserve Bank of India Ac t, 1934 (2 of 1934), including in such report its suggestions, if any, for the strengthening of banking business throughout the country. (3) The Reserve Bank may appoint such staff at such places as it considers necessary for the scrutiny of the returns, s tatements and information furnished by banking companies under this Act, and generally to ensure the efficient performance of its functions under this Act. 2[36A. Certain provisions of the Act not to apply to certain banking companies .(1) The provisions o f section 11, sub -section ( 1) of section 12, and sections 17, 18, 24 and 25 shall not apply to a banking company (a) which, whether before or after the commencement of the Banking Companies (Amendment) Act, 1959 (33 of 1959), has been refused a licence un der section 22, or prohibited from accepting fresh deposits by a compromise, arrangement or scheme sanctioned by a court or by any order made in any proceeding relating to such compromise, arrangement or scheme, or prohibited from accepting deposits by vir tue of any alteration made in its memorandum; or (b) whose licence has been cancelled under section 22, whether before or after the commencement of the Banking Companies (Amendment) Act, 1959 (33 of 1959). (2) Where the Reserve Bank is satisfied that any s uch banking company as is referred to in sub-section ( 1) has repaid, or has made adequate provision for repaying all deposits accepted by the banking company, either in full or to the maximum extent possible, the Reserve Bank may, by notice published in the Official Gazette, notify that the banking company has ceased to be a banking company within the meaning of this Act, and thereupon all the provisions of this Act applicable to such banking company shall cease to apply to it, except as respec ts things done or omitted to be done before such notice.] 3[PART IIA CONTROL OVER MANAGEMENT 36AA. Power of Reserve Bank to remove managerial and other persons from office. (1) Where the Reserve Bank is satisfied that in the public interest or for preventi ng the affairs of a banking company being conducted in a manner detrimental to the interests of the depositors or for securing the proper management of any banking company it is necessary so to do, the Reserve Bank may, for reasons to be recorded in writin g, by order, remove from office, with effect from such date as may be specified in the order, 4[any chairman, director,] chief executive officer (by whatever name called) or other officer or employee of the banking company. (2) No order under sub -section ( 1) shall be made 5[unless the chairman, director] or chief executive officer or other officer or employee concerned has been given a reasonable opportunity of making a representation to the Reserve Bank against the proposed order: Provided that if, in the opinion of the Reserve Bank, any delay would be detrimental to the interests of the banking company or its depositors, the Reserve Bank may, at the time of giving the opportunity aforesaid or at any time thereafter, by order direct that, pendin g the consideration of the 1. Certain words omitted by Act 58 of 1968, s. 12 (w.e.f. 1 -2-1969). 2. Ins. by Act 33 of 1959, s. 23 (w.e.f. 1 -10-1959). 3. Ins. by Act 55 of 1963, s. 18 (w.e.f. 1 -2-1964). 4. Subs. by Act 58 of 1968, s. 13, f or any director (w.e.f. 1 -2- 1969). 5. Subs. by s. 13, ibid., for unless the director (w.e.f. 1 -2- 1969). 42 representation aforesaid, if any, 1[the chairman or, as the case may be, director or chief executive officer] or other officer or employee, shall not, with effect from the date of such order (a) 2[act as such chairman or directo r] or chief executive officer or other officer or employee of the banking company; (b) in any way, whether directly or indirectly, be concerned with, or take part in the management of, the banking company. (3) (a) Any person against whom an order of remova l has been made under sub -section ( 1) may, within thirty days from the date of communication to him of the order, prefer an appeal to the Central Government. (b) The decision of the Central Government on such appeal, and subject thereto, the order made by the Reserve Bank under sub -section ( 1), shall be final and shall not be called into question in any court. (4) Where any order is made in respect of 3[a chairman, director] or chief executive officer or other officer or employee of a banking company under sub-section ( 1), he shall cease to be 4[a chairman or, as the case may be, a director,] chief executive officer or other officer or employee of the banking company and shall not, in any way, whether directly or indirectly, be concerned with, or take part i n the management of, any banking company for such period not exceeding five years as may be specified in the order. (5) If any person in respect of whom an order is made by the Reserve Bank under sub -section ( 1) or under the proviso to sub -section ( 2) cont ravenes the provisions of this section, he shall be punishable with fine which may extend to two hundred and fifty rupees for each day during which such contravention continues. (6) Where an order under sub -section ( 1) has been made, the Reserve Bank may, by order in writing, appoint a suitable person in place of 5[the chairman or director] or chief executive officer or other officer or employee who has been removed from his office under that sub -section, with effect from such date as may be specified in th e order. (7) Any person appointed as 6[chairman, director or chief executive officer] or other officer or employee under this section, shall (a) hold office during the pleasure of the Reserve Bank and subject thereto for a period not exceeding three years or such further periods not exceeding three years at a time as the Reserve Bank may specify; (b) not incur any obligation or liability by reason only of his being a [chairman, director or chief executive officer] or other officer or employee or for anythi ng done or omitted to be done in good faith in the execution of the duties of his office or in relation thereto. (8) Notwithstanding anything contained in any law or in any contract, memorandum or articles of association, on the removal of a person from of fice under this section, that person shall not be entitled to claim any compensation for the loss or termination of office. 36AB. Power of Reserve Bank to appoint additional directors .(1) If the Reserve Bank is of 7[opinion that in the interest of banking policy or in the public interest or] in the interests of the banking company or its depositors it is necessary so to do, it may, from time to time by order in writing, 1. Subs. by Act 58 of 1968, s. 13, for the director or, as the case may be, chief executive officer (w.e.f. 1 -2-1969). 2. Subs. by s. 13, ibid., for act as such director (w.e.f. 1 -2- 1969). 3. Subs. by s. 13, ibid., for a director (w.e.f. 1 -2-1969). 4. Subs. by s. 13, ibid., for a director or as the case may be, (w.e.f. 1 -2-1969). 5. Subs. by s. 13, ibid., for the director (w.e.f. 1 -2-1969). 6. Subs. by s. 13, ibid., for director or chief executive officer (w.e.f. 1 -2-1969). 7. Subs. by s. 14, ibid., for opinion that (w.e.f. 1 -2-1969). 43 appoint, with effect from such date as may be specified in the order, one or more pers ons to hold office as additional d irectors of the banking company. 1 * * * * (2) Any person appointed as additional director in pursuance of this section (a) shall hold office during the pleasure of the Reserve Bank and subject thereto for a period not exceeding three years or such further periods not exceeding three years at a time as the Reserve Bank may specify; (b) shall not incur any obligation or liability by reason only of his being a director or for anything done or omitted to be done in good faith in the execution of the duties of his office or in relation thereto; and (c) shall not be required to hold qualification shares in the banking company. (3) For the purpose of reckoning any proportion of the total number of directors of the banking company, any additional director appointed under this section shall not be taken into account. 36AC . Part IIA to override other laws .Any appointment or removal of a director, chief executive officer or other officer or employee in pursuance of sec tion 36AA or section 36AB shall have effect notwithstanding anything to the contrary contained in the Companies Act, 1956 (1 of 1956), or any other law for the time being in force or in any contract or any other instrument.] 2[PART IIAB SUPERSESSION OF BOA RD OF DIRECTORS OF BANKING COMPANY 36ACA. Supersession of Board of Directors in certain cases .(1) Where the Reserve Bank is satisfied, in consultation with the Central Government, that in the public interest or for preventing the affairs of any banking co mpany being conducted in a manner detrimental to the interest of the depositors or any banking company or for securing the proper management of any banking company, it is necessary so to do, the Reserve Bank may, for reasons to be recorded in writing, by o rder, supersede the Board of Directors of such bank
, the Reserve Bank may, for reasons to be recorded in writing, by o rder, supersede the Board of Directors of such banking company for a period not exceeding six months as may be specified in the order: Provided that the period of supersession of the Board of Directors may be extended from time to time, so, however, that the total period shall not exceed twelve months. (2) The Reserve Bank may, on supersession of the Board of Directors of the banking company under sub -section ( 1) appoint in consultation with the Central Government for such period as it may determine, an Ad ministrator (not being an officer of the Central Government or a State Government) who has experience in law, finance, banking, economics or accountancy. (3) The Reserve Bank may issue such directions to the Administrator as it may deem appropriate and the Administrator shall be bound to follow such directions. (4) Upon making the order of supersession of the Board of Directors of a banking company, notwithstanding anything contained in the Companies Act, 1956 (1 of 1956) , (a) the chairman, managing direct or and other directors shall, as from the date of supersession, vacate their offices as such; (b) all the powers, functions and duties which may, by or under the provisions of the Companies Act, 1956 (1 of 1956) or this Act, or any other law for the time b eing in force, be exercised and discharged by or on behalf of the Board of Directors of such banking company, or by a resolution passed in general meeting of such banking company, shall, until the Board of 1. Proviso omitted by Act 1 of 1984, s. 31 (w.e.f. 15 -2-1984). 2. Ins. by Act 4 of 2013, s. 10 (w.e.f . 18-1-2013). 44 Directors of such banking company is rec onstituted, be exercised and discharged by the Administrator appointed by the Reserve Bank under sub -section ( 2): Provided that the power exercised by the Administrator shall be valid notwithstanding that such power is exercisable by a resolution passed in the general meeting of such banking company. (5) The Reserve Bank may constitute, in consultation with the Central Government, a committee of three or more persons who have experience in law, finance, banking, economics or accountancy to assist the Admini strator in the discharge of his duties. (6) The committee shall meet at such times and places and observe such rules of procedure as may be specified by the Reserve Bank. (7) The salary and allowances to the Administrator and the members of the committee c onstituted under sub -section ( 5) by the Reserve Bank shall be such as may be specified by the Reserve Bank and be payable by the concerned banking company. (8) On and before the expiration of two months before the expiry of the period of supersession of the Board of Directors as specified in the order issued under sub -section ( 1), the Administrator of the banking company, shall call the general meeting of the company to elect new directors and reconstitute its Board of Directors. (9) Notwithstanding anythi ng contained in any other law or in any contract, the memorandum or articles of association, no person shall be entitled to claim any compensation for the loss or termination of his office. (10) The Administrator appointed under sub -section ( 2) shall vacat e office immediately after the Board of Directors of such banking company has been reconstituted.] 1[PART IIB PROHIBITION OF CERTAIN ACTIVITIES IN RELATION TO BANKING COMPANIES 36AD. Punishments for certain activities in relation to banking companies .(1) No person shall (a) obstruct any person from lawfully entering or leaving any office or place of business of a banking company or from carrying on any business there, or (b) hold, within the office or place of business of any banking company, any demonstr ation which is violent or which prevents, or is calculated to prevent, the transaction of normal business by the banking company, or (c) act in any manner calculated to undermine the confidence of the depositors in the banking company. (2) Whoever contrave nes any provision of sub -section ( 1) without any reasonable excuse shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. 2[(3) For the purposes of this section banking company includes the Reserve Bank, 3*** the Exim Bank 4[the Reconstruction Bank], 5[the National Housing Bank], the National Bank , 6[the Small Industries Bank 7[, the National Bank for Financing Infrastructure a nd Development or the other development financial institution, ]] the State Bank of India, a corresponding new bank, a regional rural bank and a subsidi ary bank]. 1. Ins. by Act 58 of 1968, s. 15 (w.e.f. 1 -2-1969). 2. Subs. by Act 1 of 1984, s. 32, for sub -section ( 3) (w.e.f. 15 -2-1984). 3. The words the Development Bank omitted by Act 53 of 2003, s. 12 and Schedule (w.e.f. 2 -7-2004). 4. Ins. by Act 62 of 1984, s. 71 and the Third Schedule (w.e.f. 20 -3-1985). 5. Ins. by Act 53 of 1987 s. 56 and the Second Schedule (w.e.f. 9 -7-1988). 6. Ins. by Act 39 of 1989, s. 53 and the Second Schedule (w.e.f. 7 -3-1990). 7. Ins. by Act 17 of 2021, s. 48 and the third Schedule (w.e.f. 19 -4-2021). 45 PART IIC ACQUISITION OF THE UNDERTAKINGS OF BANKING COMPANIES IN CERTAIN CASES 36AE. Power of Central Government to acquire undertakings of banking companies in certain cases .(1) If, upon receipt of a report from the Reserve Bank, the Central Government is satisfied that a banking company (a) has, on more than one occasion, failed to comply with the directions given to it in writing under section 21 or section 35A, in so far as such directions relate to banking policy, or (b) is being managed in a manner detrimental to the interests of its depositors, and that (i) in the interests of the depositors of such banking company, or (ii) in the interest of banking policy, or (iii) for the better provision of credit generally or of credit to any par ticular section of the community or in any particular area, it is necessary to acquire the undertaking of such banking company, the Central Government may, after such consultation with the Reserve Bank as it thinks fit, by notified order, acquire the unde rtaking of such company (hereinafter referred to as the acquired bank) with effect from such date as may be specified in this behalf by the Central Government (hereinafter referred to as the appointed day): Provided that no undertaking of any banking compa ny shall be so acquired unless such banking company has been given a reasonable opportunity of showing cause against the proposed action. Explanation .In this Part, (a) notified order means an order published in the Official Gazette; (b) undertaking , in relation to a banking company incorporated outside India, means the undertaking of the company in India. (2) Subject to the other provisions contained in this Part, on the appointed day, the undertaking of the acquired bank and all the assets and liab ilities of the acquired bank shall stand transferred to, and vest in, the Central Government. (3) The undertaking of the acquired bank and its assets and liabilities shall be deemed to include all rights, powers, authorities and privileges and all property , whether movable or immovable, including, in particular, cash balances, reserve funds, investments, deposits and all other interests and rights in, or arising out of, such property as may be in the possession of, or held by, the acquired bank immediately before the appointed day and all books, accounts and documents relating thereto, and shall also be deemed to include all debts, liabilities and obligations, of whatever kind, then existing of the acquired bank. (4) Notwithstanding anything contained in sub -section ( 2), the Central Government may, if it is satisfied that the undertaking of the acquired bank and its assets and liabilities should, instead of vesting in the Central Government, or continuing to so vest, vest in a company established under any sc heme made under this Part or in any corporation (hereinafter in this Part and in the Fifth Schedule referred to as the transferee bank) that Government may, by order, direct that the said undertaking, including the assets and liabilities thereof, shall ves t in the transferee bank either on the publication of the notified order or on such other date as may be specified in this behalf by the Central Government. (5) Where the undertaking of the acquired bank and the assets and liabilities thereof vest in the transferee bank under sub -section ( 4), the transferee bank, shall, on and from the date of such vesting, be deemed to have become the transferee of the acquired bank and all the rights and liabilities in relation to the acquired bank shall, on and from the date of such vesting, be deemed to have been the rights and liabilities of the transferee bank. 46 (6) Unless otherwise expressly provided by or under this Part, all contracts, deeds, bonds, agreements, powers of attorney, grants of legal representation and other instruments of whatever nature subsisting or having effect immediately before the appointed day and to which the acquired bank is a party or which are in favour of the acquired bank shall be of as full force and effect against or in favour of the Cen tral Government, or as the case may be, of the transferee bank, and may be enforced or acted upon as fully and effectually as if in the place of the acquired bank the Central Government or the transferee bank had been a party thereto or as if they had been issued in favour of the Central Government or the transferee bank, as the case may be. (7) If, on the appointed day, any suit, appeal or other proceeding of whatever nature is pending by or against the acquired bank, the same shall not abate, be discontin ued or be, in any way, prejudicially affected by reason of the transfer of the undertaking of the acquired bank or of anything contained in this Part, but the suit, appeal or other proceeding may be continued, prosecuted and enforced by or against the Cent ral Government or the transferee bank, as the case may be. 36AF. Power of the Central Government to make scheme .(1) The Central Government may after consultation with the Reserve Bank, make a scheme for carrying out the purposes of this Part in relation t o any acquired bank. (2) In particular, and without prejudice to the generality of the foregoing power, the said scheme may provide for all or any of the following matters, namely: (a) the corporation, or the company incorporated for the purpose, to which the undertaking including the property, assets and liabilities of the acquired bank may be transferred, and the capital, constitution, name and office thereof; (b) the constitution of the first Board of management (by whatever name called) of the transfer ee bank, and all such matters in connection therewith or incidental thereto as the Central Government may consider to be necessary or expedient; (c) the continuance of t he services of all the employee of the acquired bank (excepting such of them as, not be ing workmen within the meaning of the Industrial Disputes Act, 1947 (14 of 1947), are specifically mentioned in the scheme) in the Central Government or in the transferee bank, as the case may be, on the same terms and conditions so far as may be, as are s pecified in clauses ( i) and ( j) of sub -section ( 5) of section 45; (d) the continuance of the right of any person who, on the appointed day, is entitled to or is in receipt of, a pension or other superannuation or compassionate allowance or benefit, from th e acquired bank or any provident, pension or other fund or any authority administering such fund, to be paid by, and to receive from, the Central Government or the transferee bank, as the case may be, or any provident, pension or other fund or any authorit y administering such fund, the same pension, allowance or benefit so long as he observes the conditions on which the pension, allowance or benefit was granted, and if any question arises whether he has so observed such conditions, the question shall be det ermined by the Central Government and the decision of the Central Government thereon shall be final; (e) the manner of payment of the compensation payable in accordance with the provisions of this Part to the shareholders of the acquired bank, or where the acquired bank is a banking company incorporated outside India, to the acquired bank in full satisfaction of their, or as the case may be, its, claims; (f) the provision, if any, for completing the effectual transfer to the Central Government or the transf eree bank of any asset or any liability which forms part of the undertaking of the acquired bank in any country outside India; (g) such incidental, consequential and supplemental matters as may be necessary to secure that the transfer of the business, prop erty, assets and liabilities of the acquired bank to the Central Government or transferee bank, as the case may be, is effectual and complete. 47 (3) The Central Government may, after consultation with the Reserve Bank, by notification in the Official Gazette , add to, amend or vary any scheme made under this section. (4) Every scheme made under this section shall be published in the Official Gazette. (5) Copies of every scheme made under this section shall be laid before each House of Parliament as soon as may be after it is made. (6) The provisions of this Part and of any scheme made thereunder shall have effect notwithstanding anything to the contrary contained in any other provisions of this Act or in any other law or any agreement, award or other instrument for the time being in force. (7) Every scheme made under this section shall be binding on the Central Government or, as the case may be, on the transferee bank and also on all members, creditors, depositors and employees of the acquired bank and of the tr ansferee bank and on any other person having any right, liability, power or function in relation to, or in connection with, the acquired bank or the transferee bank, as the case may be. 36AG. Compensation to be given to shareholders of the acquired bank .(1) Every person who, immediately before the appointed day, is registered as a holder of shares in the acquired bank or, where the acquired bank is a banking company
who, immediately before the appointed day, is registered as a holder of shares in the acquired bank or, where the acquired bank is a banking company incorporated outside India, the acquired bank, shall be given by the Central Government, or the transferee bank, as the case may be, such compensation in respect of the transfer of the undertaking of the acquired bank as is determined in accordance with the principles contained in the Fifth Schedule. (2) Nothing contained in sub -section ( 1) shal l affect the rights inter se between the holder of any share in the acquired bank and any other person who may have any interest in such shares and such other person shall be entitled to enforce his interest against the compensation awarded to the holder o f such share, but not against the Central Government, or the transferee bank. (3) The amount of compensation to be given in accordance with the principles contained in the Fifth Schedule shall be determined in the first instance by the Central Government, or the transferee bank, as the case may be, in consultation with the Reserve Bank, and shall be offered by it to all those to whom compensation is payable under sub - section ( 1) in full satisfaction thereof. (4) If the amount of compensation offered in ter ms of sub -section ( 3) is not acceptable to any person to whom the compensation is payable, such person may, before such date as may be notified by the Central Government in the Official Gazette, request the Central Government in writing, to have the matter referred to the Tribunal constituted under section 36AH. (5) If, before the date notified under sub -section ( 4), the Central Government receives requests, in terms of that sub -section, from not less than one -fourth in number of the shareholders holding no t less than one -fourth in value of the paid -up share capital of the acquired bank, or, where the acquired bank is a banking company incorporated outside India , from the acquired bank, the Central Government shall have the matter referred to the Tribunal fo r decision. (6) If, before the date notified under sub -section ( 4), the Central Government does not receive requests as provided in that sub - section, the amount of compensation offered under sub -section ( 3), and where a reference has been made to the Trib unal, the amount determined by it, shall be the compensation payable under sub -section ( 1) and shall be final and binding on all parties concerned. 36AH. Constitution of the Tribunal .(1) The Central Government may, for the purpose of this Part, constitute a Tribunal which shall consist of a Chairman and two other members. (2) The Chairman shall be a person who is, or has been, a Judge of a High Court or of the Supreme Court, and, of the two other members, one shall be a person, who, in the opinion of the C entral Government, has had experience of commercial banking and the other shall be a person who is a chartered accountant within the meaning of the Chartered Accountants Act, 1949 (38 of 1949). 48 (3) If, for any reason, a vacancy occurs in the office of th e Chairman or any other member of the Tribunal, the Central Government may fill the vacancy by appointing another person thereto in accordance with the provisions of sub -section ( 2), and any proceeding may be continued before the Tribunal, so constituted, from the stage at which the vacancy occurred. (4) The Tribunal may, for the purpose of determining any compensation payable under this Part, choose one or more persons having special knowledge or experience of any relevant matter to assist it in the determ ination of such compensation. 36AI. Tribunal to have powers of a civil court .(1) The Tribunal shall have the powers of a civil court, while trying a suit, under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely: (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) issuing commissions for the examination of witnesses or documents. (2) Notwithstanding anything contained in sub -section ( 1), or in any other law for the time being in force, the Tribunal shall not compel the Central Government or the Reserve Bank, (a) to produce any books of account or other documents which the Central Govern ment, or the Reserve Bank, claims to be of a confidential nature; (b) to make any such books or documents part of the record of the proceedings before the Tribunal; or (c) to give inspection of any such books or documents to any party before it or to any o ther person. 36AJ. Procedure of the Tribunal .(1) The Tribunal shall have power to regulate its own procedure. (2) The Tribunal may hold the whole or any part of its inquiry in camera . (3) Any clerical or arithmetical error in any order of the Tribunal or any error arising therein from any accidental slip or ommission may, at any time, be corrected by the Tribunal either of its own motion or on the application of any of the parties.] PART III SUSPENSION OF BUSINESS AND WINDING UP OF BANKING COMPANIES 1[2[36B.] High Court defined .In this Part and in Part IIIA, High Court , in relation to a banking company, means the High Court exercising Jurisdiction in the place where the registered office of the banking company is situated or, in the case of a banking com pany incorporated outside India, where its principal place of business in India is situated.] 37. Suspension of business .(1) The 3[High Court] may on the application of a banking company which is temporarily unable to meet its obligations make an order (a copy of which it shall cause to be forwarded to the Reserve Bank) staying the commencement or continuance of all actions and proceedings against the company for a fixed period of time on such terms and conditions as it shall think fit and proper, and may from time to time extend the period so however that the total period of moratorium shall not exceed six months. 1. Ins. by Act 52 of 1953, s. 3. 2. Secti on 36A renumbered as section 36B by Act 33 of 1959, s. 24 (w.e.f. 1 -10-1959). 3. Subs. by Act 52 of 1953, s. 4, for Court. 49 (2) No such application shall be maintainable unless it is accompanied by a report of the Reserve Bank indicating that in the opinion of the Res erve Bank the banking company will be able to pay its debts if the application is granted: Provided that the 1[High Court] may, for sufficient reasons, grant relief under this section even if the application is not accompanied by such report, and where suc h relief is granted, the 1[High Court] shall call for a report from the Reserve Bank on the affairs of the banking company, on receipt of which it may either rescind any order already passed or pass such further orders thereon as may be just and proper in the circumstances. 2[(3) When an application is made under sub -section ( 1), the High Court may appoint a special officer who shall forthwith take into his custody or under his control all the assets, books, documents, effect s and actionable claims to which the banking company is or appears to be entitled and shall also exercise such other powers as the High Court may deem fit to confer on him, having regard to the interests of the depositors of the banking company.] 3[(4) Where the Reserve Bank is satisfied that the affairs of a banking company in respect of which an order under sub -section ( 1) has been made, are being conducted in a manner detrimental to the interests of the depositors, it may make an application to the High Court for the winding up of the company, and where any such application is made, the High Court shall not make any order extending the period for which the commencement or continuance of all actions and proceedings against the company were stayed under that sub - section.] 4[38. Winding up by High Court .(1) Notwithstanding anything contained in section 391 section 392, section 433 and section 583 of the Companies Act, 1956 (1 of 1956), but without prejudice to its powers under sub -section ( 1) of section 37 of this Act, the High Court sh all order the winding up of a banking company (a) if the banking company is unable to pay its debts; or (b) if an application for its winding up has been made by the Reserve bank under section 37 or this section. (2) The Reserve Bank shall make an applica tion under this section for the winding up of a banking company if it is directed so to do by an order under clause ( b) of sub -section ( 4) of section 35. (3) The Reserve Bank may make an application under this section for the winding up of a banking compan y (a) if the banking company (i) has failed to comply with the requirements specified in section 11; or (ii) has by reason of the provisions of section 22 become disentitled to carry on banking business in India; or (iii) has been prohibited from receiv ing fresh deposits by an order under clause ( a) of sub-section ( 4) of section 35 or under clause ( b) of sub -section ( 3A) of section 42 of the Reserve Bank of India Act, 1934 (2 of 1934.); or (iv) having failed to comply with any requirement of th is Act other than the requirements laid down in section 11, has continued such failure, or, having contravened any provision of this Act has continued such contravention beyond such period or periods as may be specified in that behalf by the Reserve Bank f rom time to time, after notice in writing of such failure or contravention has been conveyed to the banking company; or 1. Subs. by Act 52 of 1953, s. 4, for Court (w.e.f. 30 -12-1953). 2. Ins. by s. 5, ibid. (w.e.f. 30 -12-1953). 3. Ins. by Act 33 o f 1959, s. 25 (w.e.f. 1 -10-1959). 4. Subs. by s. 26, ibid., for section 38 (w.e.f. 1 - 10-1959). 50 (b) if in the opinion of the Reserve Bank (i) a compromise or arrangement sanctioned by a Court in respect of the banking company canno t be worked satisfactorily with or without modifications; or (ii) the returns, statements or information furnished to it under or in pursuance of the provisions of this Act disclose that the banking company is unable to pay its debts; or (iii) the continua nce of the banking company is prejudicial to the interests of its depositors. (4) Without prejudice to the provisions contained in section 434 of the Companies Act, 1956 (1 of 1956), a banking company shall be deemed to be unable to pay its deb ts if it has refused to meet any lawful demand made at any of its offices or branches within two working days, if such demand is made at a place where there is an office, branch or agency of the Reserve Bank, or within five working days, if such demand is made elsewhere, and if the Reserve Bank certifies in writing that the banking company is unable to pay its debts. (5) A copy of every application made by the Reserve Bank under sub -section ( 1) shall be sent by the Reserve Bank to the registrar.] 1[38A. Cou rt Liquidator .(1) There shall be attached to every High Court a court liquidator to be appointed by the Central Government for the purpose of conducting all proceedings for the winding up of banking companies and performing such other duties in reference thereto as the High Court may impose. 2* * * * * (4) Where having regard to the number of banking companies wound up and other circumstances of the case, the Central Government is of opinion that it is not necessary or expedient to attach for the t ime being a court liquidator to a High Court, it may, from time to time, by notification in the Official Gazette, direct that this section shall not have effect in relation to that High Court.] 3[39. Reserve Bank to be official Liquidator .4[(1)] Notwithst anding anything contained in section 38A of this Act or in section 448 or section 449 of the Companies Act, 1956 (1 of 1956), where in any proceeding for the winding up by the High Court of a banking company, an application is made by the Reserve Bank in t his behalf, the Reserve Bank, the State Bank of India or any other bank notified by the Central Government in this behalf or any individual, as stated in such application shall be appointed as the official liquidator of the banking co mpany in such proceedi ng and the liquidator, if any, functioning in such proceeding shall vacate office upon such appointment. ] 5[(2) Subject to such directions as may be made by the High Court , the remuneration of the official liquidator appointed under this section, the cost and expenses of his establishment and the cost and expenses of the winding up shall be met out of the assets of the banking company which is being wound up, and notwithstanding anything to the contrary contained in any other law for the time being in force , no fees shall be payable to the Central Government, out of the assets of the banking company.] 6[39A. Application of Companies Act to liquidators .(1) All the provisions of the Companies Act, 1956 (1 of 1956), relating to a liquidator, in so far as they are not inconsistent with this Act, shall apply to or in relation to a liquidator appointed under section 38A or section 39. 1. Ins. by Act 52 of 1953, s. 6 (w.e.f. 30 -12-1953). 2. Omitted by Act 95 of 1956, s. 14 and Schedule (w.e.f. 14 -1-1957). 3. Section 39 has been amended by Acts 52 of 1953, sections 4 and 7; Act 23 of 1955, s. 53 and the Fourth Schedule; Act 79 of 1956, s. 43 and the Second Schedule; Act 95 of 1956, s. 14 and the Schedule; Act 33 of 1959, s. 27 and Act 37 of 1960, s. 2 to read as above. 4. Section 39 re -numbere d as sub -section ( 1) thereof by Act 58 of 1968, s. 16 (retrospectively). 5. Ins. by s. 16, ibid.
968, s. 16 (retrospectively). 5. Ins. by s. 16, ibid. (with retrospective effect). 6. Ins. by Act 33 of 1959, s. 28 (w.e.f. 1 -10-1959). 51 (2) Any reference to the official liquidator in this Part and Part IIIA shall be construed as including a reference to any liquid ator of a banking company.] 40. Stay of proceedings . Notwithstanding anything to the contrary contained in 1[section 466 of the Companies Act, 1956 (1 of 1956)] , the 2[High Court] shall not make any order staying the proceedings in relation to the winding up of a banking company, unless the 2[High Court] is satisfied that an arrangement has been made whereby the company can pay its depositors in full as their claims accrue. 3[41. Preliminary report by official liquidator .Notwithstanding anything to the co ntrary contained in section 455 of the Companies Act, 1956 (1 of 1956), where a winding up order has been made in respect of a banking company whether before or after the commencement of the Banking Companies (Second Amendment) Act, 1960 (37 of 1960), the official liquidator shall submit a preliminary report to the High Court within two months from the date of the winding up order or where the winding up order has been made before such commencement, within two months from such commencement, giving the infor mation required by that section so far as it is available to him and also stating the amount of assets of the banking company in cash which are in his custody or under his control on the date of the report and the amount of its assets which are likely to b e collected in cash before the expiry of that period of two months in order that such assets may be applied speedily towards the making of preferential payments under section 530 of the Companies Act, 1956 and in the discharge, as far as possible, of the l iabilities and obligations of the banking company to its depositors and other creditors in accordance with the provisions hereinafter contained; and the official liquidator shall make for the purposes aforesaid every endeavour to collect in cash as much of the assets of the banking company as practicable. 41A. Notice to preferential claimants and secured and unsecured creditors .(1) Within fifteen days from the date of the winding up order of a banking company or where the winding up order has been made bef ore the commencement of the Banking Companies (Second Amendment) Act, 1960 (37 of 1960), within one month from such commencement, the official liquidator shall, for the purpose of making an estimate of the debts and liabilities of the banking company (othe r than its liabilities and obligations to its depositors), by notice served in such manner as the Reserve Bank may direct, call upon (a) every claimant entitled to preferential payment under section 530 of the Companies Act, 1956 (1 of 1956), and (b) ever y secured and every unsecured creditor, to send to the official liquidator within one month from the date of the service of the notice a statement of the amount claimed by him. (2) Every notice under sub -section ( 1) sent to a claimant having a claim under section 530 of the Companies Act, 1956 (1 of 1956), shall state that if a statement of the claim is not sent to the official liquidator before the expiry of the period of one month from the date of the service, the claim shall not be treated as a claim ent itled to be paid under section 530 of the Companies Act, 1956, in priority to all other debts but shall be treated as an ordinary debt due by the banking company. (3) Every notice under sub -section ( 1) sent to a secured creditor shall require him to value his security before the expiry of the period of one month from the date of the service of the notice and shall state that if a statement of the claim together with the valuation of the security is not sent to the official liquidator before the expiry of th e said period, then, the official liquidator shall himself value the security and such valuation shall be binding on the creditor. 1. Subs. by Act 95 of 1956, s. 14 and Schedule, for section 173 of the Indi an Companies Act, 1913 (7 of 1913) (w.e.f. 14 -1-1957). 2. Subs. by Act 52 of 1953, s. 4, for Court ( w.e.f. 30 -12-1953). 3. Subs. by Act 37 of 1960, s. 3, for s. 41. 52 (4) If a claimant fails to comply with the notice sent to him under sub -section ( 1), his claim will not be entitled to be pai d under section 530 of the Companies Act, 1956 (1 of 1956), in priority to all other debts but shall be treated as an ordinary debt due by the banking company; and if a secured creditor fails to comply with the notice sent to him under sub -section ( 1), the official liquidator shall himself value the security and such valuation shall be binding on the creditor.] 42. Power to dispense with meetings of creditors, etc .Notwithstanding anything to the contrary contained in 1[ 2[section 460] of the Companies Act, 1956 (1 of 1956)] , the 3[High Court] may, in the proceedings for winding up a banking company, dispense with any meetings of creditors or contributories 4*** if it considers that no object will be secured thereby sufficient to justify the delay and expens e. 5[43. Booked depositors' credits to be deemed proved .In any proceeding for the winding up of a banking company, every depositor of the banking company shall be deemed to have filed his claim for the amount shown in the books of the banking company as s tanding to his credit and, notwithstanding anything to the contrary contained in 6[section 474 of the Companies Act, 1956 (1 of 1956)] the High Court shall presume such claims to have been proved, unless the official liquidator shows that there is reason f or doubting its correctness. ] 7[43A. Preferential payments to depositors .(1) In every proceeding for the winding -up of a banking company where a winding up order has been made, whether before or after the commencement of the Banking Companies (Second Amen dment) Act, 1960 (37 of 1960) , within three mont hs from the date of the winding up order or where the winding up order has been made before such commencement, within three months therefrom, the preferential payments referred to in section 530 of the Compan ies Act, 1956 (1 of 1956), in respect of which statements of claims have been sent within one month from the date of the service of the notice referred to in section 41A, shall be made by the official liquidator or adequate provision for such payments shal l be made by him. (2) After the preferential payments as aforesaid have been made or adequate provision has been made in respect thereof, there shall be paid within the aforesaid period of three months (a) in the first place, to every depositor in the sav ings bank account of the banking company a sum of two hundred and fifty rupees or the balance at his credit, whichever is less; and thereafter, (b) in the next place, to every other depositor of the banking company a sum of two hundred and fifty rupees or the balance at his credit, whichever is less, in priority to all other debts from out of the remaining assets of the banking company available for payment to general creditors: Provided that the sum total of the amounts paid under clause ( a) and clause ( b) to any one person who in his own name (and not jointly with any other person) is a depositor in the savings bank account of the banking company and also a depositor in any other account, shall not exceed the sum of two hundred and fifty rupees. (3) Where within the aforesaid period of three months full payment cannot be made of the amounts required to be paid under clause ( a) or clause ( b) of sub -section ( 2) with the assets in cash, the official liquidator shall pay within that period to every depositor u nder that clause ( a) or, as the case may be, clause ( b) of that sub -section on a pro rata basis so much of the amount due to the 1. Subs. by Act 95 of 1956, s. 14 and the Schedule, for sections 178A and 183 of the Indian Companies Act 1913 (7 of 1913) (w.e.f. 14 -1-1957). 2. Subs. by Act 1 of 1984, s. 33, for sections 460, 464, and 465 (w.e.f. 15 -2-1984). 3. Subs. by Act 52 of 1953, s. 4, for Court (w.e.f. 30 -12-1953). 4. The words or with the appo intment of a committee of inspection omitted by Act 1 of 1984, s. 33 (w.e.f. 15 -2-1984). 5. Subs. by Act 52 of 1953, s. 8, for section 43 (w.e.f. 30 -12-1953). 6. Subs. by Act 95 of 1956, s. 14 and the Schedule, for section 191 of the Indian Companies Act 1913 (7 of 1913) (w.e.f. 14 -1-1957). 7. Subs. by Act 37 of 1960, s. 4, for section 43A (w.e.f. 19 -9-1960). 53 depositor under that clause as the official liquidator is able to pay with those assets; and shall pay the rest of that amount to every such depositor as and when sufficient assets are collected by the official liquidator in cash. (4) After payments have been made first to depositors in the savings bank account and then to the other depositors in accord ance with the foregoing provisions, the remaining assets of the banking company available for payment to general creditors shall be utilised for payment on a pro rata basis of the debts of the general creditors and of the further sums, if any, due to the d epositors; and after making adequate provision for payment on a pro rata basis as aforesaid of the debts of the general creditors, the official liquidator shall, as and when the assets of the company are collected in cash, make payment on a pro rata basis as aforesaid, of the further sums, if any, which may remain due to the depositors referred to in clause ( a) and clause ( b) of sub -section ( 2). (5) In order to enable the official liquidator to have in his custody or under his control in cash as much of the assets of the banking company as possible, the securities given to every secured creditor may be redeemed by the official liquidator (a) where the amount due to the creditor is more than the value of the securities as assessed by him or, as the case may be, as assessed by the official liquidator, on payment of such value; and (b) where the amount due to the creditor is equal to or less than the value of the securities as so assessed, on payment of the amount due: Provided that where the official liquidato r is not satisfied with the valuation made by the creditor, he may apply to the High Court for making a valuation. (6) When any claimant, creditor or depositor to whom any payment is to be made in accordance with 1[the provisions of this section], cannot b e found or is not readily traceable, adequate provision shall be made by the official liquidator for such payment. (7) For the purposes of this section, the payments specified in each of the following clauses shall be treated as payments of a different cla ss, namely: (a) payments to preferential claimants under section 530 of the Companies Act, 1956 (1 of 1956); (b) payments under clause ( a) of sub -section ( 2) to the depositors in the savings bank account; (c) payments under clause ( b) of sub-section ( 2) to the other depositors; (d) payments to the general creditors and payments to the depositors in addition to those specified in clause ( a) and clause ( b) of sub -section ( 2). (8) The payments of each different class specified in sub -section (7) shall rank equally among themselves and be paid in full unless the assets are insufficient to meet them, in which case they sha ll abate in equal proportion.]] 2[(9) Nothing contained in sub -sections ( 2), (3), (4), (7) and ( 8) shall apply to a banking company in respect of the depositors of which the Deposit Insurance Corporation is liable under section 16 of the Deposit Insurance Corporation Act, 1961 (47 of 1961). (10) After preferential payments referred to in sub -section ( 1) have been made or adequa te provision has been made in respect thereof, the remaining assets of the banking company referred to in sub-section ( 9) available for payment to general creditors shall be utilised for payment on pro rata basis of the debts of the general creditors and of the sums due to the depositors: Provided that where any amount in respect of any deposit is to be paid by the liquidator to the Deposit Insurance Corporation under section 21 of the Deposit Insurance Corporation Act, 1961 (47 of 196 1), only the balance, if any, left after making the said payment shall be payable to the depositor.] 1. Subs. by Act 47 of 1961, s. 51 and Second Schedule, for the foregoing provisions (w.e.f. 1 -1-1962). 2. Ins. by s. 51 and the Se cond Schedule, ibid. (w.e.f. 1 -1-1962). 54 1[44. Powers of High Court in voluntary winding up .(1) Notwithstanding anything to the contrary contained in section 484 of the Companies Act
voluntary winding up .(1) Notwithstanding anything to the contrary contained in section 484 of the Companies Act, 1956 (1 o f 1956), no banking company may be voluntarily wound up unless the Reserve Bank certifies in writing that the company is able to pay in full all its debts to its creditors as they accrue. (2) The High Court may, in any case where a banking company is being wound up voluntarily, make an order that the voluntary winding up shall continue, but subject to the supervision of the court. (3) Without prejudice to the provisions contained in sections 441 and 521 of the Companies Act, 1956 (1 of 1956), the High Cour t may of its own motion and shall on the application of the Reserve Bank, order the winding up of a banking company by the High Court in any of the following cases, namely: (a) where the banking company is being wound up voluntarily and at any stage durin g the voluntary winding up proceedings the company is not able to meet its debts as they accrue; or (b) where the banking company is being wound up voluntarily or is being wound up subject to the supervision of the court and the High Court is satisfied tha t the voluntary winding up or winding up subject to the supervision of the court cannot be continued without detriment to the interests of the depositors.] 2[44A. Procedure for amalgamation of banking companies .(1) Notwithstanding anything contained in an y law for the time being in force, no banking company shall be amalgamated with another banking company, unless a scheme containing the terms of such amalgamation has been p laced in draft before the share holders of each of the banking companies concerned s eparately, and approved by a resolution passed by a majority in number representing tw o-thirds in value of the share holders of each of the said companies, present either in person or by proxy at a meeting called for the purpose. (2) Notice of every such me eting as is referred to in sub -section ( 1) shall be given to every share holder of each of the banking companies concerned in accordance with the r elevant articles of association indicating the time, place and object of the meeting, and shall also be publis hed at least once a week for three consecutive weeks in not less than two newspapers which circulate in the locality or localities where the registered offices of the banking companies concerned are situated, one of such newspapers being in a language comm only understood in the locality or localities. (3) Any shareholder, who has voted against the scheme of amalgamation at the meeting or has given notice in writing at or prior to the meeting to the company concerned or to the presiding officer of the meetin g that he dissents from the scheme of amalgamation, shall be entitled, in the event of the scheme being sanctioned by the Reserve Bank, to claim from the banking company concerned, in respect of the shares held by him in that company, their value as determ ined by the Reserved Bank when sanctioning the scheme and such determination by the Reserve Bank as to the value of the shares to be paid to the dissenting share holder shall be final for all purposes. (4) If the scheme of amalgamation is approved by the r equisite majority of share holders in accordance with the provisions of this section it shall be submitted to the Reserve Bank for sanction and shall, if sanctioned by the Reserve Bank by an order in writing passed in this behalf, be binding s on the banking companies concerned and also on all the shareholders thereof. 3* * * * * (6) On the sanctioning of a scheme of amalgamation by the Reserve Bank, the property of the amalgamated banking company shall, by virtue of the order of sanction, be transf erred to and vest in, and the liabilities of the said company shall, by virtue of the said order be transferred to, and become the liabilities of, the banking company which under the scheme of amalgamation is to acquire the 1. Subs. by Act 33 of 1959, s. 30, for section 44 (w.e.f. 1 - 10-1959). 2. Ins. by Act 20 of 1950, s. 8. 3. Omitted by Act 55 of 1963, s. 19 (w.e.f. 1 -2- 1964). 55 business of the amalgamated bank ing company, subject in all cases to 1[the provisions of the scheme as sanctioned].] 2[(6A) Where a scheme of amalgamation is sanctioned by the Reserve Bank under the provisions of this section, the Reserve Bank may, by a further order in writing, direct that on such date as may be specified therein the banking company (hereinafter in this section referred to as the amalgamated banking company) which by reason of the amalgamation will cease to function, shall stand dissolved and any such direction shall ta ke effect notwithstanding anything to the contrary contained in any other law. (6B) Where the Reserve Bank directs a dissolution of the amalgamated banking company, it shall transmit a copy of the order directing such dissolution to the Registrar before wh om the banking company has been registered and on receipt of such order the Registrar shall strike off the name of the company. (6C) An order under sub -section ( 4) whether made before or after the commencement of section 19 of the Banking Laws (Miscellaneo us Provisions) Act, 1963 (55 of 1963) shall be conclusive evidence that all the requirements of this section relating to amalgamation have been complied with, and a copy of the said order certified in writing by an officer of the Reserve Bank to be true co py of such order and a copy of the scheme certified in the like manner to be a true copy thereof shall, in all legal proceedings (whether in appeal or otherwise and whether instituted before or after the commencement of the said section 19), be admitted as evidence to the same extent as the original order and the original scheme.] 3[(7) Nothing in the foregoing provisions of this section shall affect the power of the Central Government to provide for the amalgamation of two or more banking companies 4*** under section 396 of the Companies Act, 1956 (1 of 1956); Provided that no such power shall be exercised by the Central Government except after consultation with the Reserve Bank.] 5[ 6[44B.] Restriction on compromise or arrangement between banking company a nd creditors .7[(1)] Notwithstanding anything contained in any law for the time being in force, no 8[High Court] shall sanction a compromise or arrangement between a banking company and its creditors or any class of them or between such company and its mem bers or any class of them 9[or sanction any modification in any such compromise or arrangement unless the compromise or arrangement or modification, as the case may be,] is certified by the Reserve Bank 10[in writing as not being incapable of being worked a nd as not being detrimental to the interests of the depositors of such banking company].] 11[(2) Where an application under 12[section 391 of the Companies Act, 1956 (1 of 1956 )] is made in respect of a banking company, the High Court may direct the Reserve Bank to make an inquiry in relation to the affairs of the banking company and the conduct of its directors and when such a direction is given, the Reserve Bank shall make such inquiry and submit its report to the High Court.] 1. Subs. by Act 55 of 1963, s. 19, for the terms of the order sanctioning the scheme (w.e.f. 1 -2-1964). 2. Ins. by s. 19, ibid. (w.e.f. 1 -2-1964). 3. Ins. by Act 37 of 1960, s. 5 (w.e.f. 19 -9-1960). 4. The words in national interest omitted by Act 7 of 1961, s. 3 (w.e.f. 24 -3-1961). 5. Subs. by Act 20 of 19 50, s. 9, for section 45 (w.e.f. 18 -3-1950). 6. Section 45 renumbered as section 44B by Act 37 of 1960, s. 6 (w.e.f.19 -9-1960). 7. Section 44B re -numbered as sub -section ( 1) thereof by Act 52 of 1953, s. 9 (w.e.f. 30 -12-1953). 8. Subs. by s. 4, ibid., for Court (w.e.f. 30 -12-1953). 9. Subs. by Act 55 of 1963, s. 20, for unless the compromise or arrangement (w.e.f. 1 -2-1964). 10. Subs. by Act 52 of 1953, s. 9, for as not being detrimental to the interests of the depositors of such company (w.e.f. 30 -11-1953). 11. Ins. by s. 9, ibid. (w.e.f. 30 -12-1953). 12. Subs. by Act 95 of 1956, s. 14 and the Schedule, for section 153 of the Indian Companies Act, 1913 (7 of 1913) (w.e.f. 14 -1-1957). 56 1[45. Power of Reserve Bank t o apply to Central Government for suspension of business by a banking company and to prepare scheme of 2[reconstruction ] or amalgamation .(1) Notwithstanding anything contained in the foregoing provisions of this Part or in any other law or 3[any agreement or other instrument], for the time being in force, where it appears to the Reserve Bank that there is good reason so to do, the Reserve Bank may apply to the Central Government for an order of moratorium in respect of 4[a banking company]. (2) The Central Government, after considering the application made by the Reserve Bank under sub-section ( 1), may make an order of moratorium staying the commencement or continuance of all actions and proceedings against the company for a fixed period of time on such ter ms and conditions as it thinks fit and proper and may from time to time extend the period so however that the total period of moratorium shall not exceed six months. (3) Except as otherwise provided by any directions given by the Central Government in the order made by it under sub -section ( 2) or at any time thereafter, the banking company shall not during the period of moratorium make any payment to any depositors or discharge any liabilities or obligations to any other creditors 5[or grant any loans or ad vances or make investments in any credit instruments] . 6[(4) During the period of moratorium 5[or at any other time] , if the Reserve Bank is satisfied that (a) in the public interest; or (b) in the interests of the depositors; or (c) in order to secure th e proper management of the banking company; or (d) in the interests of the banking system of the country as a whole, it is necessary so to do, the Reserve Bank may prepare a scheme (i) for the reconstruction of the banking company, or (ii) for the amalga mation of the banking company with any other banking institution (in this section referred to as the transferee bank ).] (5) The scheme aforesaid may contain provisions for all or any of the following matters, namely: (a) the constitution, name and regi stered office, the capital, assets, powers, rights, interes ts, authorities and privileges, the liabilities, duties and obligations of the banking company on its reconstruction or, as the case may be, of the transferee bank; (b) in the case of amalgamation of the banking company, the transfer to the transferee bank of the business, properties, assets and liabilities of the banking company on such terms and conditions as may be specified in the scheme; (c) and change in the Board of directors, or the appointm ent of a new Board of directors, of the banking company on its reconstruction or, as the case may be, of the transferee bank and the authority by whom, the manner in which, and the other terms and conditions on which, such change or appointment shall be ma de and in the case of appointment of a new Board of directors or of any director, the period for which such appointment shall be made; 1. Ins. by Act 37 of 1960, s. 6 ( w.e.f. 19 -9-1960). 2. subs. by Act 39 of 2020, s. 3, for reconstitution (w.e.f. 26 -6-2020). 3. Subs. by Act 7 of 1961, s. 4, for any agreement (w.e.f. 24 -3-1961). 4. Subs. by s. 4, ibid., for the banking company(w.e.f. 24 -3-1961). 5. Ins. by Act 39 o f 2020, s. 3 (w.e.f. 26 -6-2020). 6. Subs. by Act 7 of 1961, s. 4, for sub -sections ( 4) to ( 9) (w.e.f. 24 -3-1961). 57 (d) the alteration of the memorandum and articles of association of the banking company on its reconstruction or, as th e case may be, of the transferee bank for the purpose of altering the capital thereof or for such other purposes as may be necessary to give effect to the reconstruction or amalgamation; (e) subject to the provisions of the scheme, the continuation by or a gainst the banking company on its reconstruction or, as the case may be, the transferee bank, of any actions or proceedings pending against the banking company immediately before the 1[reconstruction or amalgamation ]; (f) the reduction of the interest or r ights which the members depositors and other creditors have in or against the banking company before its reconstruction or amalgamation to such extent as the Reserve Bank considers necessary in the public interest or in the interests of the members, deposi tors and other creditors or for the maintenance of the business of the banking company; (g) the payment in cash or otherwise to depositors and other creditors in full satisfaction of their claim (i) in respect of their interest or rights in or against the banking company before its reconstruction or amalgamation; or (ii) where their interest or rights aforesaid in or against the banking company has or have been
amation; or (ii) where their interest or rights aforesaid in or against the banking company has or have been reduced under clause ( f), in respect of such interes t or rights as so reduced; (h) the allotmen t to the members of the banking company for shares held by them therein before its reconstruction or amalgamation [whether their interest in such shares has been reduced under clause ( f) or not], of shares in the banking company on its reconstruction or, a s the case may be, in the transferee bank and where any members claim payment in cash and not allotment of shares, or where it is not possible to allot shares to any members, the payment in cash to those members in full satisfaction of their claim (i) in respect of their interest in shares in the banking company before its reconstruction or amalgamation; or (ii) where such interest has been reduced under clause (f) in respect of their interest in shares as so reduced; (i) the continuance of the services of all the employees of the banking company (excepting such of them as not being workmen within the meaning of the Industrial Disputes Act, 1947 (14 of 1947) are specifically mentioned in the scheme) in the banking company itself on its reconstruction or, as the case may be, in the transferee bank at the same remuneration and on the same terms and conditions of service, which they were getting or, as the case may be, by which they were being governed, immediately before the 1[reconstruction or amalgamation] : Provided that the scheme shall contain a provision that (i) the banking company shall pay or grant not later than the expiry of the period of three years from the date on which the scheme is sanctioned by the Central Government, to the said employees the same remuneration and the same terms and conditions of s ervice 2[as are, at the time of such payment or grant, applicable] to employees of corresponding rank or status of a comparable banking company to be determined for this purpose by the Reserve Bank (w hose determination in this respect shall be final); (ii) the transferee bank shall pay or grant not later than the expiry of the aforesaid period of three years, to the said employees the same remuneration and the same terms and conditions of service 2[as are, at the time of such payment or grant, applicable] to the other employees of corresponding rank or status of the transferee bank subject to the qualifications and experience of the said employees being the same as or equivalent to those of such other e mployees of the transferee bank: 1. Subs. by Act 39 of 2020, s. 3, for date of the order of moratorium (w.e.f. 26 -6-2020). 2. Subs. by Act 1 of 1984, s. 34, for as are app licable (w.e.f. 15 -2-1984). 58 Provided further that if in any case under clause ( ii) of the first proviso any doubt or difference arises as to whether the qualification and experience of any of the said employees are the same as or equivalent to the qua lifications and experience of the other employees of corresponding rank or status of the transferee bank, 1[the doubt or difference shall be referred, before the expiry of a period of three years from the date of the payment or grant mentioned in that clau se,] to the Reserve Bank whose decision thereon shall be final; (j) notwithstanding anything contained in clause ( i) where any of the employees of the banking company not being workmen within the meaning of the Industrial Disputes Act, 1947 (14 of 1947) are specifically mentioned in the scheme under clause ( i), or where any employees of the banking company have by notice in writing given to the banking company or, as the case may be, the transferee bank at any time before the expiry of the one month next fo llowing the date on which the scheme is sanctioned by the Central Government, intimated their intention of not becoming employees of the banking company on its reconstruction or, as the case may be, of the transferee bank , the payment to such employees of comp ensation if any , to which they are entitled under the Industrial Disputes Act, 1947 (14 of 1947), and such pension, gratuity, provident fund and other retirement benefits ordinarily admissible to them under the rules or authorisations of the banking company immediately before the 2[reconstruction or amalgamation] ; (k) any other terms and conditions for the reconstruction or amalgamation of the banking company; (l) such incidental, consequential and supplemental matters as are necessary to secure that th e reconstruction or amalgamation shall be fully and effectively carried out. (6) (a) A copy of the scheme prepared by the Reserve Bank shall be sent in draft to the banking company and also to the transferee bank and any other banking company concerned in the 3[reconstruction or amalgamation ], for suggestions and objections, if any, within such period as the Reserve Ba nk may specify for this purpose. (b) The Reserve Bank may make such modifications, if any, in the draft scheme as it may consider necessary i n the light of the suggestions and objections received from the banking company and also from the transferee bank, and any other banking company concerned in the amalgamation and from any members, depositors or other creditors of each of those companies an d the transferee bank. (7) The scheme shall thereafter be placed before the Central Government for its sanction and the Central Government may sanction the scheme without any modifications or with such modifications as it may consider necessary; and the sc heme as sanctioned by the Central Government shall come into force on such date as the Central Government may specify in this behalf : Provided that different dates may be specified for different provisions of the scheme. 4[(7A) The sanction accorded by the Central Government under sub -section ( 7), whether before or after the commencement of section 21 of the Banking Laws (Miscellaneous Provisions) Act, 1963 (55 of 1963), shall be conclusive evidence that all the requirements of this section relati ng to reconstruction, or, as the case may be, amalgamation have been complied with and a copy of the sanctioned scheme certified in writing by an officer of the Central Government to be a true copy thereof, shall, in all legal proceedings (whether in appea l or otherwise and whether instituted before or after the commencement of the said section 21), be admitted as evidence to the same extent as the original scheme.] 1. Subs. by Act 11 of 1984, s. 34, for the doubt or difference shall be referred (w.e.f. 15 -2-1984). 2. Subs. by Act 39 of 2020, s. 3, for date of the order of moratorium (w.e.f. 26 -6-2020). 3. Subs. by s. 3, ibid., for a malgamation (w.e.f. 26 -6-2020). 4. Ins. by Act 55 of 1963, s. 21 (w.e.f. 1 -2-1964). 59 (8) On and from the date of the coming into operation of the scheme or any provision thereof , the scheme or such provision shall be binding on the banking company or, as the case may be, on the transferee bank and any other banking company concerned in the amalgamation and also on all the members, depositors and other creditors and employees of e ach of those companies and of the transferee bank, and on any other person having any right or liability in relation to any of those companies or the transferee bank 1[including the trustees or other persons managing, or connected in any other manner with, any provident fund or other fund maintained by any of those companies or the transferee bank.] (9) 2[On and from the date of the coming into operation of, or as the case may be, the d ate specified in this behalf in the scheme] the properties and assets of the banking company shall, by virtue of and to the extent provided in the scheme, stand transferred to, and vest in, and the liabilities of the banking company shall, by virtue of and to the extent provided in the scheme, stand transferred to , and become the liabilities of the transferee bank. (10) If any difficulty arises in giving effect to the provisions of the scheme, the Central Government may by order do anything not inconsistent with such provisions which appears to it necessary or expedient for the purpose of removing the difficulty. (11) Copies of the scheme or of any order made under sub -section ( 10) shall be laid before both Houses of Parliament, as soon as may be, after the scheme has been sanctioned by the Central Government, or, as the case ma y be, the order has been made. (12) Where the scheme is a scheme for amalgamation of the banking company, any business acquired by the transferee bank under the scheme or under any provision thereof shall, after the coming into operation of the scheme or s uch provision, be carried on by the transferee bank in accordance with the law governing the transferee bank, subject to such modifications in that law or such exemptions of the transferee bank from the operation of any provisions thereof as the Central Go vernment on the recommendation of the Reserve Bank may, by notification in the Official Gazette, make for the purpose of giving full effect to the scheme: Provided that no such modification or exemption shall be made so as to have effect for a period of more than seven years from the date of the acquisition of such business. (13) Nothing in this section shall be deemed to prevent the amalgamation with a banking institution by a single scheme of several banking companies in respect of each of which an order of moratorium has been made under this section. (14) The provisions of this section and of any scheme made under it shall have effect notwithstanding anything to the contrary contained in any other provisions of this Act or in any other law or any agreemen t, award or other instrument for the time being in force. (15) In this section, banking institution means any banking company and includes the State Bank of India 3*** 2[or a corresponding new ban k]. 1[Explanation .References in this section to the terms and conditions of service of as applicable to an employee shall not be construed as extending to the ran k and status of such employee.] 4[PART IIIA SPECIAL PROVISIONS FOR SPEEDY DISPOSAL OF WINDING UP PROCEEDINGS 45A. Part IIIA to override other laws .The provisions of this Part and the rules made thereunder shall have effect notwithstanding anything inconsistent therewith contained in the 1. Ins. by Act 1 of 1984, s. 34 (w.e.f. 15 -2-1984). 2. Subs. by s. 34, ibid., for certain words (w.e.f 15 -2-1984). 3. The words or a subsidiary bank omitted by Act 39 of 2020, s. 3 (w.e.f. 26 -6-2020). 4. Subs. by Act 52 of 1953, s. 10, for Part IIIA (w.e.f. 30 -12-1953). 60 1[Companies Act, 1956 (1 of 1956)] or the Code of Civil Procedure, 1908 (5 of 1908) of the 2[Code of Criminal Procedure , 1973 (2 of 1974)] or any other law for the time being in force or any instrument having effect by virtue of any such law; but the provisions of any such law or instrument in so far as the same are not varied by, or in consistent with, the provisions of this Part or rules made thereunder shall apply to all proceedings under this Part. 45B. Power of High Court to decide all claims in respect of banking companies .The High Court shall, save as otherwise expressly provided in section 45C, have exclusive jurisdiction to entertain and decide any claim made by or against a banking company which is being wound up (including claims by or against any of its branches in India) or any application made under 3[section 391 of the Comp anies Act, 1956 (1 of 1956)] by or in respect of a banking company or any question of priorities or any other question whatsoever, whether of law or fact, which may relate to or arise in the course of the winding up of a banking company, whether such claim or question has arisen or arises or such application has been made or is made before or after the date of the order for the winding up of the banking company or before or after the commencement of the Banking Companies (Amendment) Act, 1953 (52 of 1953) . 45C. Transfer of pending proceedings .(1) Where a winding up order is made or has been made in respect of a banking company, no suit or other legal proceeding, whether civil or criminal, in respect of which the High Court has jurisdiction under this Act an d which is pending in any other court immediately before the commencement of the Banking Companies (Amendment) Act, 1953 (52 of 1953), or the date of the order for the winding up of the banking company, whichever is later, shall be proceeded with except in the manner hereinafter provided. (2) The official liquidator shall, within three months from the date of the winding up order or the commencement of the Banking Companies (Amendment) Act, 1953 (52 of 1953), whichever is later, or such further time as the High Court may allow, submit to the High Court a report containing a list of all such pending proceedings together with particulars thereof. (3) On receipt of a report under sub -section ( 2), the High Court may, if it so thinks fit, give the parties concern ed an opportunity to show cause why the proceedings should not be transferred to itself and after making an inquiry in such manner as may be provided by rules made under section 45U, it shall make such order as it deems fit transferring to itself all or su ch of the pending proceedings as may be specified in the order and such proceedings shall thereafter be disposed of by the High Court. (4) If any proceeding pending in a court is not so transferred to the High Court under sub-section ( 3), such proceeding shall be continued in the court in which the proceeding was pending. (5) Nothing in this section shall apply to any proceeding pending in appeal before the Supreme Court or a High Court. 45D. Settlement of list of debtors .(1) Notwithsta nding anything to the contrary contained in any law for the time being in force, the High Court may settle in the manner hereinafter provided a list of debtors of a banking company which is being wound up. (2) Subject to any rules that may be made under se ction 52, the official liquidator shall, within six
(2) Subject to any rules that may be made under se ction 52, the official liquidator shall, within six months from the date of the winding up order or the commencement of the Banking Companies (Amendment) Act, 1953 (52 of 1953), whichever is later, from time to time, file 88H to the High Court lists of deb tors containing such particulars as are specified in the Fourth Schedule: Provided that such lists may, with the leave of the High Court, be filed after the expiry of the said period of six months. 1. Subs. by Act 95 of 1956, s. 14 and the Schedule, for Indian Companies Act, 1913 (7 of 1913) (w.e.f. 14 -1-1957). 2. Subs. by Act 1 of 1984, s. 35, for Code of Criminal Procedure 1898 (5 of 1898) (w.e.f. 15 -2-1984). 3. Subs. by Act 95 of 1956, s. 14 and the Schedule, for section 153 of the Indian Companies Act, 1913 (7 of 1913) (w.e.f. 14 -1-1957). 61 (3) On receipt of any list under sub -section ( 2), the High Court shall, wherever necessary, cause notices to be issued on all persons affected and after making an inquiry in such manner as may be provided by rules made under section 45U, it shall make an order settling the list of debtors: Provided that nothing i n this section shall debar the High Court from settling any such list in part as against such of the persons whose debts have been settled without settling the debts of all the persons placed on the list. (4) At the time of the settlement of any such list, the High Court shall pass an order for the payment of the amount due by each debtor and make such further orders as may be necessary in respect of the relief claimed, including reliefs against any guarantor or in respect of the realisation of any security . (5) Every such order shall, subject to the provisions for appeal, be final and binding for all purposes as between the banking company on the one hand and the person against whom the order is passed and all persons claiming through or under him on the ot her hand, and shall be deemed to be a decree in a suit. (6) In respect of every such order, the High Court shall issue a certificate specifying clearly the reliefs granted and the names and descriptions of the parties whom such reliefs have been granted, t he amount of costs awarded and by whom, and out of what funds and in what proportions, such costs are to be paid; and every such certificate shall be deemed to be a certified copy of the decree for all purposes including execution. (7) At the time of settl ing the list of debtors or at any other time prior or subsequent thereto, the High Court shall have power to pass any order in respect of a debtor on the application of the official liquidator for the realisation, management, protection, preservation or sa le of any property given as security to the banking company and to give such powers to the official liquidator to carry out the aforesaid directions as the High Court thinks fit. (8) The High Court shall have power to sanction a compromise in respect of an y debt and to order the payment of any debt by instalments. (9) In any case in which any such list is settled ex parte as against any person, such person may, within thirty days from the date of the order settling the list, apply to the High Court for an o rder to vary such list, so far as it concerns him, and if the High Court is satisfied that he was prevented by any sufficient cause from appearing on the date fixed for the settlement of such list and that he has a good defence to the claim of the banking company on merits, the High Court may vary the list and pass such orders in relation thereto as it thinks fit: Provided that the High Court may, if it so thinks fit, entertain the application after the expiry of the said period of thirty days. (10) Nothing in this section shall (a) apply to a debt which has been secured by a mortgage of immovable property, if a third party has any interest in such immovable property; or (b) prejudice the rights of the official liquidator to recover any debt due to a bankin g company under any other law for the time being in force. 45E. Special provisions to make calls on contributories . Notwithstanding that the list of the contributories has not been settled under 1[section 467 of the Companies Act, 1956 (1 of 1956)], the High Court may, if it appears to it necessary or expedient so to do, at any time after making a winding up order, make a call on and order payment thereof by any contributory under sub -section ( 1) of 2[section 470 of the Companies Act, 1956] if such contrib utory has been placed on the list of contributories by the official liquidator and has not appeared to dispute his liability. 1. Subs. by Act 95 of 1956, s. 14 and th e Schedule, for section 184 of the Indian Companies Act, 1913 (7 of 1913) (w.e.f. 14 -1-1957). 2. Subs. by s. 14 and the Schedule, ibid., for section 187 of the Indian Companies Act, 1913 (7 of 1913) (w.e.f. 14 -1-1957). 62 45F. Documents of banking company to be evidence .(1) Entries in the books of account or other documents of a banking company whic h is being wound up shall be admitted in evidence in all 1[legal proceedings]; and all such entries may be proved either by the production of the books of account or other documents of the banking company containing such entries or by the production of a copy of the entries, certified by the official liquidator under his signature and stating that it is a true copy of the original entries and that such original entries are contained in the books of account or other documents of the banking company in his po ssession. (2) Notwithstanding anything to the contrary contained in the Indian Evidence Act, 1872 (1 of 1872) all such entries in the books of account or other documents of a banking company shall, as against the directors 2[officers and other employees] of the banking company in respect of which the winding up order has been made 3***, be prima facie evidence of the truth of all matters purporting to be therein recorded. 45G. Public examination of directors and auditors .(1) Where an order has been made f or the winding up of a banking company, the official liquidator shall submit a report whether in his opinion any loss has been caused to the banking company since its formation by any act or omission (whether or not a fraud has been committed by such act o r omission) of any person in the promotion or formation of the banking company or of any director or auditor of the banking company. (2) If, on consideration of the report submitted under sub -section ( 1), the High Court is of opinion that any person who ha s taken part in the promotion or formation of the banking company or has been a director or an auditor of the banking company should be publicly examined, it shall hold a public sitting on a date to be appointed for that purpose and direct that such person , director or auditor shall attend thereat and shall be publicly examined as to the promotion or formation or the conduct of the business of the banking company, or as to his conduct and dealings, in so far as they relate to the affairs of the banking comp any: Provided that no such person shall be publicly examined unless he has been given an opportunity to show cause why he should not be so examined. (3) The official liquidator shall take part in the examination and for that purpose may, if specially autho rised by the High Court in that behalf, employ such legal assistance as may be sanctioned by the High Court. (4) Any creditor or contributory may also take part in the examination either personally or by any person entitled to appear before the High Court. (5) The High Court may put such questions to the person examined as it thinks fit. (6) The person examined shall be examined on oath and shall answer all such questions as the High Court may put or allow to be put to him. (7) A person ordered to be exami ned under this section may, at his own cost, employ any person entitled to appear before the High Court who shall be at liberty to put to him such questions as the High Court may deem just for the purpose of enabling him to explain or qualify any answer g iven by him: Provided that if he is, in the opinion of the High Court, exculpated from any charges made or suggested against him, the High Court may allow him such costs in its discretion as it may deem fit. (8) Notes of the examination shall be taken dow n in writing, and shall be read over to or by, and signed by, the person examined and may thereafter be used in evidence against him in any 1. Subs. by Act 55 of 1963, s. 22, for proceedings by or against the banking company (w.e.f. 1 -2-1964). 2. Ins. by s. 22, ibid. (w.e.f. 1 -2-1964). 3. The words, brackets and figures before the commencement of the Banking Companies (Amendment) Act, 1953 omitted by s. 22 , ibid. (w.e.f. 1 -2-1964). 63 proceeding, civil or criminal, and shall be open to the inspection of any creditor or contributory at al l reasonable times. (9) Where on such examination, the High Court is of opinion (whether a fraud has been committed or not) (a) that a person, who has been a director of the banking company, is not fit to be a director of a company, or (b) that a person, who has been an auditor of the banking company or a partner of a firm acting as such auditor, is not fit to act as an auditor of a company or to be a partner of a firm acting as such auditor, the High Court may make an order that person shall not, without the leave of the High Court, be a director of, or in any way, whether directly or indirectly, be concerned or take part in the management of any company or, as the case may be, act as an auditor of, or be a partner of a firm acting as auditors of, any com pany for such period not exceeding five years as may be specified in the order. 45H. Special provisions for assessing damages against delinquent directors, etc .(1) Where an application is made to the High Court under 1[section 543 of the Companies Act, 19 56 (1 of 1956)] against any promoter, director, manager, liquidator or officer of a banking company for repayment or restoration of any money or property and the applicant makes out a prima facie case against such person, the High Court shall make an order against such person to repay and restore the money or property unless he proves that he is not liable to make the repayment or restoration either wholly or in part: Provided that where such an order is made jointly against two or more such persons, they shall be jointly and severally liable to make the repayment or restoration of the money or property. (2) Where an application is made to the High Court under 1[section 543 of the Companies Act, 1956 (1 of 1956)] and the High Court has reason to believe tha t a property belongs to any pr omoter, director, manager, liqui dator or officer of the banking company, whether the property stands in the name of such person or any other person as an ostensible owner, then the High Court may, at any time, whether before o r after making an order under sub -section ( 1), direct the attachment of such property, or such portion thereof, as it thinks fit and the property so attached shall remain subject to attachment unless the ostensible owner can prove to the satisfaction of th e High Court that he is the real owner and the provisions of the Code of Civil Procedure, 1908 (5 of 1908) relating to attachment of property shall, as far as may be, apply to such attachment. 45-I. Duty of directors and officers of banking company to assi st in the realisation of property .Every director or other officer of a banking company which is being wound up shall give such assistance to the official liquidator as he may reasonably require in connection with the realisation and distribution of the pr operty of the banking company. 45J. Special provisions for punishing offences in relation to banking companies being wound up.(1) The High Court may, if it thinks fit, take cognizance of and try in a summary way any offence alleged to have been committed by any person who has taken part in the promotion or formation of the banking company which is being wound up or by any direct or, manager or officer thereof: Provided that the offence is one punishable under this Act or under the 2[Companies Act, 1956 (1 of 1956)]. 1. Subs. by Act 95 of 1956, s. 14 and the Schedule, for section 235 of the Indian Companies Act, 1913 (7 of 1913) (w.e.f. 14 -1-1957). 2. Subs. by s. 14 and the Schedule, ibid., for Indian Companies Act, 1913 ( 7 of 1913) (w.e.f. 14 -1-1957). 64 (2) When trying any such offence as aforesaid, the High Court may also try any other offence not referred to in sub -section ( 1) which is an offence with w hich the accused may, under the 1[Code of Criminal Procedure 1973 (2 of 197 4)] be charged at the same trial. (3) In any case tried summarily under sub -section ( 1), the High Court (a) need not summon any witness, if it is satisfied that the evidence of such witness will not be material; (b) shall not be bound to adjourn a trial for a ny purpose unless such adjournment is, in the opinion of the High Court, necessary in the interests of justice; (c) shall, before passing any sentence, record judgment embodying the substance of the evidence and also the particulars specified in section 26 3 of the 1[Code of Criminal Procedure, 1973 (2 of 1974) ] so far as that section may be applicable , and nothing contained in sub -section ( 2) of section 262 of the 1[Code of C
section may be applicable , and nothing contained in sub -section ( 2) of section 262 of the 1[Code of Criminal Procedure, 1973 (2 of 1974)] shall apply to any such trial. (4) All offences in relation to winding up alleged to have been committed by any person specified in sub -section ( 1) which are punishable under this Act or under the 1[Companies Act, 1956 (1 of 1956)] and which are not tried in a summary way under sub -sectio n (1) shall, notwithstanding anything to the contrary contained in that Act or the 1[Code of Criminal Procedure, 1973 (2 of 1974)] or in any other law for the time being in force, be taken cognizance of and tried by a Judge of the High Court other than the Judge for the time being dealing with the proceedings for the winding up of the banking company. (5) Notwithstanding anything to the contrary contained in the 1[Code of Criminal Procedure, 1973 (2 of 1974)], the High Court may take cognizance of any offen ce under this section without the accused being committed to it for trial 2*. 45K. [ Power of High Court to enforce schemes of arrangements, etc. ] Omitted by the Banking Companies (Amendment) Act , 1959 (33 of 1959), s. 31 ( w.e.f. 1-10-1959). 45L. Public e xamination of directors and auditors, etc., in respect of a banking company under schemes of arrangement .(1) Where an application for sanctioning a compromise or arrangement in respect of a banking company is made under 3[section 391 of the Companies Act, 1956 (1 of 1956)] or where such sanction has been given and the High Court is of opinion, whether on a report of the Reserve Bank or otherwise, that any person who has taken part in the promotion or formation of the banking company or has been a director or auditor of the banking company should be publicly examined, it may direct such examination of such person and the provisions of section 45G shall, as far as may be, apply to the banking company as they apply to a banking company which is being wound up. (2) Where a compromise or arrangement is sancti oned under 3[section 391 of the Companies Act, 1956 (1 of 1956)] in respect of a banking company, the provisions of 4[section 543 of the said Act] and of section 45H of this Act shall, as far as m ay be, apply to the banking company as they apply to a banking company which is being wound up as if the order sanctioning the compromise or arrangement were an order for the winding up of the banking company. 1. Subs. by Act 1 of 1984, s. 35, for Code of Criminal Procedure, 1898 (5 of 1898) (w.e.f. 15 -2-1984). 2. The words and all such trials shall be without the aid of a jury omitted by s. 35, ibid. (w.e.f.15 -2-1984). 3. Su bs. by Act 95 of 1956, s. 14 and the Schedule, for section 153 of the Indian Companies Act, 1913 (7 of 1913) (w.e.f. 14 -1-1957). 4. Subs. by s. 14 and the Schedule, ibid., for section 235of the said Act (w.e.f. 14 -1-1957). 65 1[(3) Where 2[a scheme of reconstruction or a malgamation of a banking company] has been sanctioned by the Central Government under section 45 and the Central Government is of opinion that any person who has taken part in the promotion or formation of the banking company or has been a director or audi tor of the banking company should be publicly examined, that Government may apply to the High Court for the examination of such person and if on such examination the High Court finds (whether a fraud has been committed or not) that person is not fit to be a director of a company or to act as an auditor of a company or to be a partner of a firm acting as such auditors, the Central Government shall make an order that that person shall not, without the leave of the Central Government, be a director of, or in a ny way, whether directly or indirectly, be concerned or take part in the management of any company or, as the case may be, act as an auditor of, or be a partner of a firm acting as auditors of, any company for such period not exceeding five years as may be specified in the order. (4) Where 2[a scheme of reconstruction or amalgamation of a banking company] has been sanctioned by the Central Government under section 45, the provisions of section 543 of the Companies Act, 1956 (1 of 1956), and of section 45H o f this Act shall, as far as may be, apply to the banking company as they apply to a banking company which is being wound up as if the order sanctioning the scheme of reconstruction or amalgamation as the case may be, were an order for the winding up of the banking company; and any reference in the said section 543 to the application of the official liquidator shall be construed as a reference to the application of the Central Government.] 45M. Special provisions for banking companies working under schemes o f arrangement at the commencement of the Amendment Act .Where any compromise or arrangement sanctioned in respe ct of a banking company under 3[section 391 of the Companies Act, 1956 (1 of 1956),] is being worked at the commencement of the Banking Companies (Amendment) Act, 1953 (52 of 1953), the High Court may, if it so thinks fit on the application of such banking company, (a) excuse any delay in carrying out any of the provisions of the compromise or arrangement; or (b) allow the banking company to sett le the list of its debtors in accordance with the provisions of section 45D and in such a case, the provisions of the said section shall, as far as may be, apply to the banking company as they apply to a banking company which is being wound up as if the or der sanctioning the compromise or arrangement were an order for the winding up of the banking company. 45N. Appeals .(1) An appeal shall lie from any order or decision of the High Court in a civil proceeding under this Act when the amount or value of the s ubject -matter of the claim exceeds five thousand rupees. (2) The High Court may by rules provide for an appeal against any order made under section 45J and the conditions subject to which any such appeal would lie. (3) Subject to the provisions of sub -section ( 1) and sub -section ( 2) and notwithstanding anything contained in any other law for the time being in force, every order or decision of the High Court shall be final and binding for all purposes as between the banking company on the one hand, and all p ersons who are parties thereto and all persons claiming through or under them or any of them, on the other hand. 45-O. Special period of limitation .(1) Notwithstanding anything to the contrary contained in the Indian Limitation Act, 1908 (9 of 1908) or in any other law for the time being in force, in 1. Ins. by Act 37 of 1960, s. 7 (w.e.f. 19 -9-1960). 2. Subs. by Act 7 of 1961, s. 5, for a scheme of reconstruction of a banking company or its amalgamation with another banking company (w.e.f. 24 -3-1961). 3. Subs. by Act 95 of 1956, s. 14 and the Schedule, for se ction 153 of the Indian Companies Act, 1913 (7 of 1913) (w.e.f. 14 -1-1957). 66 computing the period of limitation prescribed for a suit or application by a banking company which is being wound up, the period commencing from the date of the presentation of the petition for th e winding up of the banking company shall be excluded. (2) Notwithstanding anything to the contrary contained in the Indian Limitation Act, 1908 (9 of 1908) or 1[section 543 of the Companies Act, 1956 (1 of 1956)] or in any other law for the time being in force, there shall be no period of limitation for the recovery of arrears of calls from any director of a banking company which is being wound up or for the enforcement by the banking company against any of its directors of any claim based on a contract, e xpress or implies; and in respect of all other claims by the banking company against its directors, the period of limitation shall be twelve years from the date of the accrual of such claims 2[or five years from the date of the first appointment of the liq uidator, whichever is longer]. (3) The provisions of this section, in so far as they relate to banking companies being wound up, shall also apply to a banking company in respect of which a petition for the winding up has been presented before the commencem ent of the Banking Companies (Am endment) Act, 1953 (52 of 1953). 45P. Reserve Bank to tender advice in winding up proceedings .Where in any proceeding for the winding up of a banking company in which any person other than the Reserve Bank has been appoint ed as the official liquidator and the High Court has directed the official liquidator to obtain the advice of the Reserve Bank on any matter (which it is hereby empowered to do), it shall be lawful for the Reserve Bank to examine the record of any such pro ceeding and tender such advice on the matter as it may think fit. 45Q. Power to inspect .(1) The Reserve Bank shall, on being directed so to do by the Central Government or by the High Court, cause an inspection to be made by one or more of its officers of a banking company which is being wound up and its books and accounts. (2) On such inspection, the Reserve Bank shall submit its report to the Central Government and the High Court. (3) If the Central Government, on consideration of the report of the Reser ve Bank, is of opinion that there has been a substantial irregularity in the winding up proceedings, it may bring such irregularity to the notice of the High Court for such action as the High Court may think fit. (4) On receipt of the report of the Reserve Bank under sub -section ( 2) or on any irregularity being brought to its notice by the Central Government under sub -section ( 3), the High Court may, if it deems fit, after giving notice to and hearing the Central Government in regard to the report, give suc h directions as it may consider necessary. 45R. Power to call for returns and information .The Reserve Bank may, at any time by a notice in writing, require the liquidator of a banking company to furnish it, within such time as may be specified in the noti ce or such further time as the Reserve Bank may allow, any statement or information relating to or connected with the winding up of the banking company; and it shall be the duty of every liquidator to comply with such requirements. Explanation .For the pur poses of this section and section 45Q, a banking company working under a compromise or arrangement but prohibited from receiving fresh deposits, shall, as far as may be, be deemed to be a banking company which is being wound up. 45S. Chief Presidency Magis trate and District Magistrate to assist official liquidator in taking charge of property of banking company being wound up .(1) For the purpose of enabling the official liquidator or the special officer appointed under sub -section ( 3) of section 37 to take into his custody or under his control, all property, effects and actionable claims to which a banking company 3* is or appears to be entitled, the official liquidator or the special officer, 1. Subs. by Act 95 of 1956, s. 14 and the Schedule, for section 235 of the Indian Companies Act, 1913 (7 of 1913) (w.e.f. 14 -1-1957). 2. Ins. by Act 33 of 1959, s. 32 (w.e.f. 1 -10-1959). 3. The words , which has been ordered to be wound up omitted by Act 55 of 1963, s. 23 (w.e.f. 1 -2-1964). 67 as the case may be, may request in writing the 1[Chief Metropolitan Magistrate or the Chief Judicial Magistrate], within whose jurisdiction any property, books of account or other documents of such banking company may be situate or be found, to take possession the reof, and the 1[Chief Metropolitan Magistrate or the Chief Judicial Magistrate], as the case may be, shall, on such request being made to him, 2[(a) take possession of such property, books of accounts or other documents, and (b) for ward them to the official liquidator or the special officer]. 3[(2) Where any such property and effects are in the possession of the 1[Chief Metropolitan Magistrate or the Chief Judicial Magistrate], as the case may be, such Magistrate shall, on request in writing being made to him by the official liquidator or the special officer referred to in sub -section ( 1), sell such property and effects and forward the net proceeds of the sale to the official liquidator or the special officer: Provided that such sale shall, as far as practicable, be effected by public auction. (3) For the purpose of securing compliance with the provisions of sub -section ( 1), the 1[Chief Metropolitan Magistrate or the Chief Judicial Magistrate], may take or cause to be taken such steps and use or cause to be used such force as may, in his opinion, be necessary. (4) No act of the 1[Chief Metropolitan Magistrate or the Chief Judicial Magistrate] done in pursuance of this section shall be called in question in any court or before any autori ty.] 45T. Enforcement of orders and decisions of High Court .(1) All orders made in any civil proceeding by a High Court may be enforced in the same manner in which decrees of such court made in any suit pending therein may be enforced. (2) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), a liquidator may apply for the execution
in the Code of Civil Procedure, 1908 (5 of 1908), a liquidator may apply for the execution of a decree by a court other than the one which made it on production of a certificate granted under sub -section ( 6) of section 45D and on his certifying to such other court in writing the amount remaining due or relief remaining unenforced under the decree. (3) Without prejudice to the provisions of sub -section ( 1) or sub -section ( 2), any amount found due to the banki ng company by an order or decision of the High Court may, with the leave of the High Court, be recovered 4[by the liquidator in the same manner as an arrear of land revenue and for the purpose of such recovery the liquidator may forward to the Collector wi thin whose jurisdiction the property of the person against whom any order or decision of the High Court has been made is situate, a certificate under his signature specifying the amount so due and the person by whom it is payable]. 5[(4) On receipt of a c ertificate under sub -section ( 3), the Collector shall proceed to recover from such person the amount specified therein as if it were an arrear of land revenue: Provided that without prejudice to any other powers of the Collector, he shall, for the purposes of recovering the said amount, have all the powers, which, under the Code of Civil Procedure, 1908 (5 of 1908), a civil court has for the purpose of the recovery of an amount due under a decree.] 45U. Power of High Court to make rules .The High Court may make rules consistent with this Act and the rules made under section 52 prescribing (a) the manner in which inquiries and proceedings under Part III or Part IIIA may be held; (b) the offence s which may be tried summarily; (c) the authority to w hich, and the conditions subject to which, appeals may be preferred and the manner in which such appeals may be filed and heard; 1. Subs. by Act 1 of 1984, s. 36, for Chief Presidency Magistrate or the District Magistrate (w.e.f.15 -2-1984 ). 2 Subs. by Act 55 of 1963, s. 23, for certain words (w.e.f. 1 -2-1964). 3. Subs. by s. 23, ibid., for sub -section ( 2) (w.e.f. 1 -2-1964). 4. Subs. s. 24, ibid., for in the same manner as an arrear of land revenue (w.e.f. 1 -2- 1964). 5. Ins. by s. 24, ibid. (w.e.f. 1 -2-1964). 68 (d) any other matter for which provision has to be made for enabling the High Court to effectively exercise its functions under this Act. 45V. References to directors, etc., shall be construed as including references to past directors, etc.For the removal of doubts it is hereby declared that any reference in this Part to a director, manager, liquidator, officer or auditor of a ba nking company shall be construed as including a reference to any past or present director, manager, liquidator, officer or auditor of the banking company. 45W. Part II not to apply to banking companies being wound up .Nothing contained in Part II shall ap ply to a banking company which is being wound up. 45X. Validation of certain proceedings .Notwithstanding anything contained in section 45B or any other provision of this Part or in section 11 of the Banking Companies (Amendment) Act, 1950 (20 of 1950), no proceeding held, judgment delivered or decree or order made before the commencement of the Banking Companies (Amendment) Act, 1953 (52 of 1953), by any court other than the High Court in respect of any matter over which the High Court has jurisdiction und er this Act shall be invalid or be deemed ever to have been invalid merely by reason of the fact that such proceeding, judgment, decree or order was held, delivered or made by a court other than the High Court.] 1[PART IIIB PROVISIONS RELATING TO CERTAIN O PERATIONS OF BANKING COMPANIES 45Y. Power of Central Government to make rules for the preservation of records .The Central Government may, after consultation with the Reserve Bank and by notification in the Official Gazette, make rules specifying the perio ds for which (a) a banking company shall preserve its books, accounts and other documents; and (b) a banking company shall preserve and keep with itself different instruments paid by it. 45Z. Return of paid instruments to customers .(1) Where a banking co mpany is required by its customer to return to him a paid instrument before the expiry of the period specified by rules made under section 45Y, the banking company shall not return the instrument except after making and keeping in its possession a true cop y of all relevant parts of such instrument, such copy being made by a mechanical or other process which in itself ensures the accuracy of the copy. (2) The banking company shall be entitled to recover from the customer the cost of making such copies of the instrument. Explanation .In this section, customer includes a Government department and a corporation incorporated by or under any law. 45ZA. Nomination for payment of depositors' money .(1) Where a deposit is held by a banking company to the credit of one or more persons, the depositor or, as the case may be, all the depositors together, may nominate, in the prescribed manner, one person to whom in the event of the death of the sole depositor or the death of all the depositors, the amount of deposit may be returned by the banking company. (2) Notwithstanding anything contained in any other law for the time being in force or in any disposition, whether testamentary or otherwise, in respect of such deposit, where a nomination made in the prescribed manner purports to confer on any person the right to receive the amount of deposit from the banking company, the nominee shall, on the death of the sole depositor or, as the case may be, on the death of all the depositors, become entitled to all the rig hts of the sole depositor or, as the case may be, of the depositors, in relation to such deposit to the exclusion of all other persons, unless the nomination is varied or cancelled in the prescribed manner. 1. Ins. by Act 1 of 1984, s. 37 (w.e.f. 29 -3-1985). 69 (3) Where the nominee is a minor, it shall be law ful for the depositor making the nomination to appoint in the prescribed manner any person to receive the amount of deposit in the event of his death during the minority of the nominee. (4) Payment by a banking company in accordance with the provisions of this section shall constitute a full discharge to the banking company of its liabi lity in respect of the deposit: Provided that nothing contained in this sub -section shall effect the right or claim which any person may have against the person to whom any p ayment is made under this section. 45ZB. Notice of claims of other persons regarding deposits not receivable .No notice of the claim of any person, other than the person or persons in whose name a deposit is held by a banking company, shall be receivable b y the banking company, nor shall the banking company be bound by any such notice even though expressly given to it: Provided that where any decree, order, certificate or other authority from a court of competent jurisdiction relating to such deposit is pro duced before a banking company, the banking company shall take due note of such decree, order, certificate or other authority. 45ZC. Nomination for return of articles kept in safe custody with banking company .(1) Where any person leaves any article in saf e custody with a banking company, such person may nominate, in the prescribed manner, one person to whom, in the event of the death of the person leaving the article in safe custody, such article may be returned by the banking company. (2) Where the nomine e is a minor, it shall be lawful for the person making the nomination to appoint in the prescribed manner any person to receive the article deposited in the event of his death during the minority of the nominee. (3) The banking company shall, before return ing any articles under this section to the nominee or the person appointed under Sub -section ( 2), prepare, in such manner as may be directed by the Reserve Bank from time to time, an inventory of the said articles which shall be signed by such nominee or person and shall deliver a copy of the inventory so prepared to such nominee or person. (4) Notwithstanding anything contained in any other law for the time being in force or in any disposition, whether testamentary or otherwise, in respect of such article , where a nomination made in the prescribed manner purports to confer on any person the right to receive the article from the banking company, the nominee shall, on the death of the person leaving the article in safe custody, become entitled to the return of the article to the exclusion of all other persons, unless the nomination is varied or cancelled in the prescribed manner: Provided that nothing contained in this section shall affect the right or claim which any person may have against the person to who m the article is returned in pursuance of this sub -section. 45ZD. Notice of claims of other persons regarding articles not receivable .No notice of the claim of any person, other than the person or persons in whose name any article is held by a banking company in safe custody, shall be receivable by the banking company, nor shall the banking company be bound by any such notice even though expressly given to it: Provided that where any decree, order, certificate or other authority from a court of competent jurisdiction relating to such article is produced before a banking company, the banking company shall take due note of such decree, order, certificate or other authority. 45ZE. Release contents of safe ty Release of locker s.(1) Wher e an individual is the so le hirer of a locker from a banking company, whether such locker is located in the safe deposit vault of such banking company or elsewhere, such individual may nominate one person to whom, in the event of the death of such individual, the bankin g company may give access to the locker and liberty to remove the contents of the locker. (2) Where any such locker is hired from a banking company by two or more individuals jointly, and, under the contract of hire, the locker is to be operated under the joint signatures of two or more of 70 such hirers, such hirers may nominate one or more persons to whom, in the event of the death of such joint hirer or hirers, the banking company may give, jointly with the surviving joint hirer or joint hirers, as the case may be, access to the locker and liberty to remove the contents of such locker. (3) Every nomination under sub -section ( 1) or sub -section ( 2) shall be made in the prescribed manner. (4) The banking company shall, before permitting the removal of the conte nts of any locker by any nominee or jointly by any nominee and survivors as aforesaid, prepare, in such manner as may be directed by the Reserve Bank from time to time, an inventory of the contents of the locker which shall be signed by such nominee or joi ntly by such nominee and survivors and shall deliver a copy of the inventory so prepared to such nominee or nominee and survivors. (5) On the removal of the contents of any locker by any nominee or jointly by any nominee and survivors as aforesaid, the lia bility of the banking company in relation to the contents of the locker shall stand discharged. (6) No suit, prosecution or other legal proceeding shall lie against a banking company for any damage caused or likely to be caused, for allowing access to any locker, and liberty to remove the contents of such locker, in pursuance of the provisions of sub -section ( 1) or sub -section ( 2), as the case may be. 45ZF. Notice of claims of other persons regarding safety lockers not receivable .No notice of the claim of any person, other than hirer or hirers of a locker, shall be receivable by a banking company nor shall the banking company be bound by any such notice even though expressly given to it: Provided that where any decree, order, certificate or other authority from a court of competent jurisdiction relating to the locker or its contents is produced before the banking company, the banking company shall take due note of such decree, order, certificate or other authority.] PART IV MISCELLANEOUS 46. Penalties .(1) Whoever in any return, balance -sheet or other document 1[or in any information required or furnished] by or under or for the purposes of any provision of this Act, wilfully makes a statement which is false in any material particular, knowing it to be false, or wilfully omits to make a material statement, shall be punishable with imprisonment for a term which may extend to three years and 2[or with fine, which may extend to one crore rupees or with both] . (2) If any person fails to produce any book, account o r other document or to furnish any statement or information which under sub -section ( 2) of section 35 it is his duty to produce or furnish, or to answer any question relating to the business of a banking company which he is asked by 3[an officer making an inspection or scrutiny under that section], he shall be punishable with a fine which may extend to 4[twenty lakh rupees ] in respect of each offence, and if he persists in such refusal, to a further fine which may extend to 5[fifty thousand rupees ] for ever y day during which the offence continues. (3) If any deposits are received by a banking company in contravention of an order under clause ( a) of sub -section ( 4) of section 35, every director or other officer of the banking company, unless he proves that th e contravention took place without his knowledge or that he exercised all due diligence to 1. Subs. by Act 95 of 1956, s. 9, for required (w.e.f. 14 -1-1957). 2. Subs. by Act 4 of 2013, s. 11, for and shall also be liable to fine (w.e.f. 18 -1-2013). 3. Subs. by Act 1 of 1984, s. 38, for an officer making an inspection under that section (w.e.f. 15 -2-1984). 4. Subs. by Act 4 of 2013, s. 11, for two thousand rupees (w.e.f. 18 -1-2013). 5. Subs. by s.
thousand rupees (w.e.f. 18 -1-2013). 5. Subs. by s. 11, ibid., for one hundred rupees (w.e.f. 18 -1-2013). 71 prevent it, shall be deemed to be guilty of such contravention and shall be punishable with a fine which may extend to twice the amount of the deposits so received. 1[(4) If any other provision of this Act is contravened or if any default is made in (i) complying with any requirement of this Act or of any order, rule or direction made or condition imposed thereunder, or (ii) carrying out the terms of, or the obligati ons under, a scheme sanctioned under sub-section ( 7) of section 45, by any person, such person shall be punishable with fine which may extend to 2[3[one crore rupees] or twice the amount involved in such contravention or default wh ere such amount is quantifiable, whichever is more, and where a contravention or default is a continuing one, with a further fine which may extend to 4[one lakh rupees] ] for every day, during which the contravention or default continues.] 5[(5) Where a con travention or default has been committed by a company, every person who, at the time the contravention or default was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, s hall be deemed to be guilty of the contravention or default and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub -section shall render any such person liable to any punishment provided in this Act if he proves that the contravention or default was committed without his knowledge or that he exercised all due diligence to prevent the contravention or default. (6) Notwithstanding anything contained in sub -section ( 5), where a contravention or default has been committed by a company, and it is proved that the same was committed with the consent or connivance of, or is attributable to any gross negligence on the part of, any director, manager, secretary or other officer of the company, such director mana ger, secretary or other officer shall also be deemed to be guilty of that contravention or default and shall be liable to be proceeded against and punished accordingly. Explanation .For the purposes of this section, (a) company means any body corporate and includes a firm or other association of individuals; and (b) director , in relation to a firm, means a partner in the firm.] 6[46A. Chairman, director, etc., to be public servants for the purposes of Chapter IX of the Indian Penal Code. 7[Every chair man who is appointed on a whole -time basis, managing director, director, auditor], liquidator, manager and any other employee of a banking company shall be deemed to be a public servant for the purposes of Chapter IX of the Indian Penal Code (45 of 1860).] 47. Cognizance of offences .No Court shall take cognizance of any offence punishable under 8[sub-section ( 5) of section 36AA or] section 46 except upon complaint in writing made by an officer of 1. Subs. by Act 1 of 1984, s. 38, for sub -section ( 4) (w.e.f. 15 -2-1984). 2. Subs. by Act 20 of 1994, s. 8, for certain words (w.e.f. 31 -1-1994). 3. Subs. by Act 4 of 2013, s. 11, for fifty thousand rupees (w.e.f. 18 -1-2013). 4. Subs. by s. 11, ibid., for two tho usand and five hundred rupees (w.e.f. 18 -1-2013). 5. Subs. by Act 55 of 1963, s. 25, for sub -section ( 4) (w.e.f. 1 -2-1964). 6. Ins. by Act 95 of 1956, s. 10 (w.e.f. 14 -1-1957). 7. Subs. by Act 20 of 1994, s. 9, for Every chairman, director, auditor (w.e .f. 31 -1-1994). 8. Ins. by Act 55 of 1963, s. 26 (w.e.f. 1 -2-1964). 72 1[the Reserve Bank or, as the case may be, the National B ank] generally or specially authorized in writing in this behalf by 2[the Reserve Bank or, as the case may be, the National Bank], and 2[no court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the first class or any court superior thereto] shall try any such offence. 3[47A. Power of Reserve Bank to impose penalty .(1) Notwithstanding anything contained in section 46, if a contravention or default of the nature referred to in 4[sub-section ( 2) or sub-section ( 3) or sub -section ( 4)] of section 46, as the case may be, is made by a banking company, then, the Reserve Bank may impose on such banking company 5[(a) where the contravention or default is of the nature referred to in sub -section ( 3) of section 46, a penalty not exceeding twen ty lakh rupees in respect of each offence if the contravention or default persists, a further penalty not exceeding fifty thousand rupees for everyday, after the first day, during which the contravention or deafult continues; (b) where the contravention is of the nature referred to in sub -section ( 3) of section 46, a penalty not exceeding twice the amount of the deposits in respect of which such contravention was made; (c) where the contravention or default is of the nature referred to in sub -section ( 4) of section 46, a penalty not exceeding one crore rupees or twice the amount invol ved in such contravention or de fault where such amount is quantifiable, whichever is more, and where such contravention or de fault is a continuing one, a further penalty which m ay extend to one lakh rupees for everyday, after the first day, durin g which the contravention or de fault continues.] 6[(2) For the purpose of adjudging the penalty under sub -section ( 1), the Reserve Bank shall serve notice on the banking company requiring it to show cause why the amount specified in the notice should not be imposed and a reasonable opportunity of being heard shall also be given to such banking company.] (4) No complaint shall be filed against any banking company in any court of law in res pect of any contravention or default in respect of which any penalty has been imposed by the Reserve Bank under this section. (5) Any penalty imposed by the Reserve Bank under this section shall be payable within a period of fourteen days from the date on which notice issued by the Reserve Bank demanding payment of the sum is served on the banking company and in the event of failure of the banking company to pay the sum within such period, may be levied on a direction made by the principal civil court havin g jurisdiction in the area where the registered office of the banking company is situated; or, in the case of a banking company incorporated outside India, where its principal place of business in India is situated: Provided that no such direction shall b e made except on an application made to the court by the Reserve Bank or any officer authorised by that Bank in this behalf. (6) The court which makes a direction under sub -section ( 5) shall issue a certificate specifying the sum payable by the banking com pany and every such certificate shall be enforceable in the same manner as if it were a decree made by the court in a civil suit. (7) Where any complaint has been filed against any banking company in any court in respect of the contravention or default of the nature referred to in sub -section ( 3) or, as the case may be, sub - section (4) of section 46, then, no proceedings for the imposition of any penalty on the banking company shall be taken under this section.] 48. Application of fines .A Court imposing a ny fine under this Act may direct that the whole or any part thereof shall be applied in or towards payment of the costs of the proceedings, or in or towards the rewarding of the person on whose information the fine is recovered. 1. Subs. by Act 61 of 1981, s. 61 and Sch. II, for the Reserve Bank (w.e.f. 12 -7-1984). 2. Subs. by Act 1 of 1984 s. 39, for certain words (w.e.f. 15 -2-1984). 3. Ins. by Act 58 of 1968, s. 17 (w.e.f. 1 -2-1969). 4. Subs. by Act 4 of 2013, s. 12, for sub -section ( 3) or sub -section ( 4) (w.e.f. 18 -1-2013). 5. Subs. by s. 12, ibid., for sub -clauses ( a) and ( b) (w.e.f. 18 -1-2013). 6. Subs. by Act 20 of 1994, s. 10, for sub -sections ( 2) and ( 3) (w.e.f. 31 -1-1994). 73 49. Special provisions for private banking companies .The exemptions, whether express or implied, in favour of a private company in 1[section s 90, 165, 182, 204 and 255, clauses ( a) and ( b) of sub-section ( 1) of section 293 and sections 300, 388A and 416 of the Companies Act, 1956 (1 of 1956)], shall not operate in favour of a private company which is a banking company. 2[49A. Restriction on acceptance of deposits withdrawable by cheque .No person other than a banking company, the Reserve Bank, the State Bank of India or any other 3[banking institution, firm or other person notified by the Central Government in this behalf on the recommendation of the Reserve Bank] shall accept from the public deposits of money withdrawable by cheque: Provided that nothing contai ned in this section shall apply to any savings bank scheme run by the Government. 49B. Change of name by a banking company .Notwithstanding anything contained in section 21 of the Companies Act, 1956 (1 of 1956), the Central Government shall not signify it s approval to the change of name of any banking company unless the Reserve Bank certifies in writing that it has no objection to such change. 49C. Alteration of memorandum of a banking company .Notwithstanding anything contained in the Companies Act, 1956 (1 of 1956), no application for the confirmation of the alteration of the memorandum of a banking company shall be maintainable unless the Reserve Bank certifies that there is no objection to such alteration.] 50. Certain claims for compensation barred .No person shall have any right, whether in contract or otherwise, to any compensation for any loss incurred by reason of the operation of any of the provisions 4[contained in sections 10, 12A, 16, 35A, 35B, 5[36, 43A and 45] or by reason of the compliance by a banking company with any order or direction given to it under this Act]. 6[51. Application on of certain provisions to the State Bank of India and other notified banks .7[(1)] Without prejudice to the provisions of the State Bank of India Act, 1955 (23 of 1955), or any other enactment, the provisions of sections 10, 13 to 15, 17, 8[19 to 21A, 23 to 28, 29 [excluding sub-section ( 3)], 9[29A] 10[sub-sections ( 1B), (1C) and ( 2) of section 30, 31], 34, 35, 35A, 11[35AA, 35AB,] 36 [excluding clause ( d) of sub -section ( 1)], 45Y to 45ZF, 46 to 48] 50, 52 and 53 shall also apply, so far as may be, to and in relation to the State Bank of India 12[or any corresponding new bank or a Regional Rural Bank or any subsidiary bank] as they apply to and in relation to banking companies: 13[Provided that (a) nothing contained in clause ( c) of sub -section ( 1) of section 10 shall apply to the cha irman of the State Bank of India or to a 14[managing director] of any subsidiary bank in so far as the said clause precludes him from be ing a director of, or holding an office in, any institutio n approved by the Reserve Bank; 1. The words, figures and letters sections 17, 77, 83B, 86H, 91B and 91D and sub -section (5) of section 144 of the Indian Companies Act, 1913 (7 of 1913) have successively been amended by Act 95 of 1956, s. 11, Act 33 of 1959, s. 3 4 and Act 55 of 1963, s. 27 to read as above. 2. Ins. by Act 33 of 1959, s. 35 (w.e.f. 1 -10-1959). 3. Subs. by Act 55 of 1963, s. 28, for certain words (w.e.f. 1 -2-1964). 4. Subs. by Act 95 of 1956, s. 12, for certain words (w.e.f. 14 -1-1957). 5. Subs. by Act 37 of 1960, s. 8, for and 36 (w.e.f. 19 -9-1960). 6. Subs. by Act 79 of 1956, s. 43 and the Second Schedule, for section 51 (w.e.f. 22 -10-1956). 7. Section 51 renumbered as sub -section ( 1) thereof by Act 1 of 1984, s. 40 (w.e.f. 15 -2-1984). 8. Subs. by s. 40,
(w.e.f. 15 -2-1984). 8. Subs. by s. 40, ibid., for certain words (w.e.f. 15 -2-1984). 9. Ins. by Act 4 of 2013, s. 13 (w.e.f. 18 -1-2013). 10. Subs. by Act 66 of 1988, s. 10, for 31 (w.e.f. 30 -12-1988). 11. Ins. by Act 30 of 2017, s. 3, (w.e.f. 4 -5-2017). 12. Subs. by Act 1 of 1984 , s. 40, for certain words (w.e.f. 15 -2-1984). 13. Subs. by Act 38 of 1959, s. 64 and the Third Schedule, for the former proviso (w.e.f. 10 -9-1959). 14. Subs. by Act 1 of 1984, s. 40, for general manager (w.e.f. 15 -2-1984). 74 1[(b) nothing contained in sub -clause ( iii) of clause ( b) of sub -section ( 1) of section 20 shall apply to any bank referred to in sub -section ( 1), insofar as the sa id sub -clause ( iii) of clause ( b) precludes that bank from entering into any commitment for granting any loan or advance to or on behalf of a company (not being a Government company) in which not less than forty per cent. of the paid -up capital is held (wh ether singly or taken together) by the Central Government or the Reserve Bank or a corporation owned by that bank; and (c) nothing contained in section 46 or in section 47A shall apply to, (i) an officer of the Central Government or the Reserve Bank, nomi nated or appointed as director of the State Bank of India or any corresponding new bank or a Regional Rural Bank or any subsidiary bank or a company; or (ii) an officer of the State Bank of India or a corresponding new bank or a Regional Rural Bank or a su bsidiary bank nominated or appointed as director of any of the said banks (not being the bank of which he is an off icer) or of a banking company.] 2* * * * * 3[(2) References to a banking company in any rule or direction relating to any provision o f this Act referred to in sub -section ( 1) shall, except where such rule or direction provides otherwise, be construed as referring also to the State Bank of India, a corresponding new bank, a Regional Rural Bank and a subsidiary bank.] 4[51A. Powers of Res erve Bank not to apply to International Financial Services Centre . Notwithstanding anything contained in any other law for the time being in force, the powers exercisable by the Reserve Bank under this Act, (a) shall not extend to an International Financi al Services Centre set up under sub -section (1) of section 18 of the Special Economic Zones Act, 2005 (28 of 2005); (b) shall be exercisable by the International Financial Services Centres Authority established under sub -section ( 1) of section 4 of the Int ernational Financial Services Centres Authority Act, 2019, in so far as regulation of financial products, financial services and financial institutions that are permitted in the International Financial Services Centres are concerned.] 52. Power of Central Government to make rules .(1) The Central Government may, after consultation with the Reserve Bank, make rules to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of this Act and all s uch rules shall be published in the Official Gazette. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for the details to be included in the returns required by this Act and the manner in which such returns shall be submitted 5[and the form in which the official liquidator may file lists of debtors to the Court having jurisdiction under Part III or Part IIIA and the particulars which such lists may contain and any other matter which has to be, or may be, prescribed]. 6* * * * * 7[(4) The Central Government may by rules made under this section annul, alter or add to, all or any of the prov isions of the Fourth Schedule.] 8[(5) Every rule made by the Central Government under this Act shall be laid , as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediate ly following the session or the successive sessions aforesaid both Houses agree 1. Subs. by Act 1 of 1984, s. 40, for clauses ( b) and ( c) (w.e.f. 15 -2-1984). 2. Explanation omitted by Act 58 of 1968, s. 18 (w.e.f. 1 -2-1969). 3. Ins. by Act 1 of 1984, s. 40 (w.e.f. 15 -2-1984). 7. Ins. by Act 50 of 2019, s. 33 and the Second Schedule (w.e.f. 1 -10-2020). 4. Added b y Act 52 of 1953, s. 11 (w.e.f. 30 -12-1953). 5. Omitted by Act 1 of 1984, s. 41 (w.e.f. 15 -2-1984). 6. Ins. by Act 52 of 1953, s. 11 (w.e.f. 30 -12-1953). 7. Ins. by Act 1 of 1984, s. 41 (w.e.f. 15 -2-1984). 75 in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effec t, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.] 53. Power to exempt in certain cases .1[(1)] The Central Government may, on the recommenda tion of the Reserve Bank, declare, by notification in the Official Gazette, that any or all of the provisions of this Act shall not apply to any 2[banking company or institution or to any class of banking companies 3***] either generally or for such period as may be specified. 4[(2) 5[A copy of every notification proposed to be issued under sub -section ( 1) relating to any banking company or institution or any class of banking companies or any branch of a banking company or an institution, as the case may be , functioning or located in any Special Economic Zone established under the Special Economic Zones Act, 2005 (28 of 2005) shall be laid in draft before each House of Parliament ], while it is in session, for a total period of thirty days which may be compri sed in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in disapproving the issue of the notification or both Houses agree in making any modification in the notification, the notification shall not be issued or, as the case may be, shall be issued only in such modified form as may be agreed upon by both the Houses.] 54. Protection of action taken under Act .(1) No suit or othe r legal proceeding shall be lie against the Central Government, the Reserve Bank or any officer for anything which is in good faith done or intended to be done in pursuance of this Act. (2) Save as otherwise expressly provided by or under this Act, no suit or other legal proceeding shall lie against the Central Government, the Reserve Bank or any officer 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. 55. Amendment of Act 2 of 193 4.The Reserve Bank of India Act, 1934 (2 of 1934), shall be amended in the manner specified in the fourth column of the First Schedule, and the amendments to section 18 thereof as specified in the said Schedule shall be deemed to have had effect on and fr om the 20th day of September, 1947. 6[55A. Power to remove difficulties .If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order, as occasion requires, do anything (not inconsistent with the provisions of this Act) which appears to it to be necessary for the purp ose of removing the difficulty: Provided that no such power shall be exercised after the expiry of a period of three years from the commencement of section 20 of the Banking Laws (Amen dment) Act, 1968 (58 of 1968).] 7[PART V APPLICATION OF THE ACT TO CO -OPERATIVE BANKS 56. Act to apply to co -operative societies subject to modifications .8[Notwithstanding anything contained in any other law for the time being in force, the provisions of this Act ], shall apply to, or in relation to, co -operative societies as they apply to, or in relation to, banking companies subject to the following modifications, namely: (a) throughout this Act, unless the context otherwise requires, 1. Section 53 renumbered as sub -section ( 1) ther eof by Act 28 of 2005, s. 57 and the Third Schedule. 2. Subs by s. 57 and Third Schedule, ibid., for banking company or institution or to any class of banking companies. 3. The words or any of their branches functioning or located in any Special Economi c Zone established under the Special Economic Zones Act, 2005 (28 of 2005) omitted by Act 17 of 2007, s. 3 (w.e.f. 23 -1-2007). 4. Ins. by Act 28 of 2005, s. 57 and the Third Schedule. 5. Subs. by Act 17 of 2007, s. 3, for A copy of every notification pr oposed to be issued under sub -section ( 1), shall be laid in draft before each house of Parliament (w.e.f. 23 -1-2007). 6. Ins. by Act 58 of 1968, s. 20 (w.e.f. 1 -2-1969). 7. Ins. by Act 23 of 1965, s. 14 (w.e.f. 1 -3-1966). 8. Subs. by Act 39 of 2020, s. 4, for certain words (w.e.f. 1 -4-2021). 76 (i) references to a banking company or the company or such company shall be construed as references to a co -operative bank, (ii) references to commencement of this Act shall be construed as references to commencement of the Banking Laws (Application to Co -operative Societies) Act, 1965 (23 of 1965); 1[(iii) references to memorandum of association or articles of association shall be construed as references to bye -laws; (iv) refe rences to the provisions of the Companies Act, 1956 (1 of 1956), except in Part I II and Part IIIA, shall be construed as references to the corresponding provisions, if any, of the law under which a co -operative bank is registered; (v) references to Registrar or Registrar of Companies shall be construed as references to Central Reg istrar or Registrar of Co -operative Societies, as the case may be, under the law under which a co -operative bank is registered;] (b) in section 2, the words and figures the Companies Act, 1956 (1 of 1956), and shall be omitted; (c) in section 5, 2[(i) after clause ( cc), the following clauses shall be inserted namely: (cci) co-operative bank means a state co -operative bank, a central co -operative bank and a primary co -operative bank; (ccii) co-operative credit society means a co -operative society, the primary object of which is to provide financial accommodation to its members and includes a co -operative land mortgage bank; 3[(cciia ) co-operative society means a society registered or deemed to have been registered under any Central Act for the ti me being in force relating to the multi -State co-operative societies, or any other Central or State law rel ating to co -operative societies for the time being in force;] (cciii) director , in relation to a co -operative society, includes a membe r of any committee or body for the time being vested with the management of the affairs of that society; 2[(cciiia ) multi -State co -operative bank means a multi -State co -operative society which is a primary co -operative bank; (cciiib ) multi -State co -operative society means a multi -State co -operative society registered as such under any Central Act for the time being in force relating to the multi - State co -operative societies but does not include a national co -operative society and a federal co -operative; ] (cciv) primary agricultural credit society means a co -operative society, (1) the primary object or principal business of which is to provide financial accommodation to its members for agricultural purposes or for purposes connected with agricultural a ctivities (including the marketing of crops); and (2) the bye -laws of which do not permit admission of any other co -operative society as a member: 1. Ins. by Act 39 of 2020, s. 4 (w.e.f. 1 -4-2021). 2. Subs. by Act 61 of 1981, s. 61 and the Second Schedule, for sub -clause ( i) (w.e.f. 1 -5-1982). 3. Ins. by Act 24 of 2004, s. 2 (w.e.f. 1 -3-1966). 77 Provided that this sub -clause shall not apply to the admission of a co -operative bank as a member by reason o f such co -operative bank subscribing to the
not apply to the admission of a co -operative bank as a member by reason o f such co -operative bank subscribing to the share capital of such co -operative society out of funds provided by the State Government for the purpose; (ccv) primary co -operative bank means a co -operative society, other than a primary agricultural credit society, (1) the primary object or principal business of which is the transaction of banking business; (2) the paid -up share capital and reserves of which are not less than one lakh of rupees; and (3) the bye -laws of which do not permit admission of any other co -operative society as a member: Provided that this sub -clause shall not apply to the admission of a co -operative bank as a member by reason of such co -operative bank subscribing to the share capital of such co -operative society out of funds provide d by the State Government for the purpose; (ccvi) primary credit society means a co -operative society, other than a primary agricultural credit society, (1) the primary object or principal business of which is the transaction of banking business; (2) the paid -up share capital and reserves of which are less than one lakh of rupees; and (3) the bye -laws of which do not permit admission of any other co -operative society as a member: Provided that this sub -clause shall not apply to the admission of a co -operative bank as a member by reason of such co -operative bank subscribing to the share capital of such co -operative society out of funds provided by the St ate Government for the purpose. Explanation .If any dispute arises as to the primary object or principal business of any co -operative society referred to in clauses ( cciv), (ccv) and ( ccvi), a determination thereof by the Reserve Bank shall be final; (ccvii ) central co -operative bank , 1*** primary rural credit society and state co-operative bank shall have the meanings respectively assigned to them in the National Bank for Agriculture a nd Rural Development Act, 1981 (61 of 1981) ;] 2[(ii) clauses ( ff), (h) and ( nb) shall be omitted;] 3* * * * * * (e) in section 6, in sub -section ( 1), 4* * * * * * (ii) in clause ( d), after the word company , the words co-operative society, shall be inserted; 1. The words co -operative society, omitted by Act 24 of 2004, s. 2 (w.e.f. 1 -3-1966). 2. Subs. by Act 1 of 1984, s. 42, for sub -clause ( ii) (w.e.f. 15 -2-1984). 3. Clause ( d) omitted by Act 39 of 2020, s. 4 (w.e.f. 1 -4-2021). 4. Sub -clause ( i) omitted by s. 4, ibid. (w.e.f. 1-4-2021). 78 1* * * * * 2[(f) for section 7, the following section shall be substituted, namely: 7. Use of words bank , banker or banking .(1) No co -operative society other than a co-operative bank shall use as part of its name or in connection with its business any of the words bank , banker or banking , and no co -operative society shall carry on the business of banking in India unless it uses as part of its name at least one of such words. (2) Nothing in this section shall apply to (a) a primary credit society, or (b) a co -operative society formed for the protection of the mutual interest of co - operative banks or 3*, or (c) any co -operative society, not being a primary credit society, formed by the employees of (i) a banking company or the State Bank of India or a corresponding new bank or a subsidiary bank of such banking company, State Bank of India or a corresponding new bank, or (ii) a co -operative bank or a primary credit society or a 3, insofar as the word bank , banker or banking appears as part of the name of the employer bank, or as the case may be, of the bank, whose subsidiary the employer bank is. ]; 4 * * * * * (h) for section 11, the following section shall be substituted, namely: 11. Requirement as to minimum paid -up capital and reserves. (1) Notwithstanding any law relating to co -operative societies for the time being in force, no co -operative bank sha ll commence or carry on the business of banking in India unless the aggregate value of its paid -up capital and reserves is not less than one lakh of rupees: Provided that nothing in this sub -section shall apply to (a) any such bank which is carrying on su ch business at the commencement of the Banking Law s (Application to Co -operative Societies) Act, 1965 (23 of 1965), for a period of three years from such commencement; or (b) to a primary credit soci ety which becomes a primary co -operative bank after such commencement, for a period of two years from the date it so becomes a primary co - operative bank or for such further period not exceeding one year as the Reserve Bank, having regard to the interests of the depositors of the primary co -operative bank, may t hink fit in any particular case to allow. (2) For the purposes of this section, value means the real of exchangeable value and not the nominal value which may be shown in the books of the co -operative bank concerned. (3) If any dispute arises in computin g the aggregate value of the paid -up capital and reserves of any such co -operative bank, a determination thereof by the Reserve Bank shall be final for the purposes of this section.'; 5[(i) for section 12, the following section shall be substituted, namely :-- 12. Issue and regulation of paid -up share capital and securities by co -operative banks. --- 1. Sub -clause ( iii) omitted by Act 39 of 2020, s. 4 (w.e.f 1-4-2021). 2. Subs. by Act 1 of 1984, s. 42, for clause ( f) (w.e.f. 15 -2-1984). 3. The words or co -operative land mortgage bank omitted by Act 39 of 2020, s. 4 (w.e.f. 1 -4-2021). 4. Clause ( fi), (fii) and ( g) omitted by s. 4, ibid. (w.e.f. 1 -4-2021). 5. Subs. by s. 4, ibid., for clause ( i) (w.e.f. 1 -4-2021). 79 (1) A co -operative bank may, with the prior approval of the Reserve Bank, issue, by way of public issue or private placement, -- (i) equity shares or preference shares or special shares, on face value or at premium; and (ii) unsecured debentures or bonds or other like securities with initial or original maturity of not less than ten years, to any member of such co -operative bank or any other person residing with in its area of operation, subject to such conditions and ceiling, limit or restriction on its issue or subscription or transfer, as may be specified by the Reserve Bank in this behalf. (2) Save as otherwise provided in this Act, -- (i) no person shall be en titled to demand payment towards surrender of shares issued to him by a co -operative bank; and (ii) a co -operative bank shall not withdraw or reduce its share capital, except to the extent and subject to such conditions as the Reserve Bank may specify in t his behalf .;;] 1[(j) for section 18, the following section shall be substituted: 18. Cash reserve. (1) Every co -operative bank, not being 2[a co -operative bank ] for the time being included in the Second Schedule to the Reserve Bank of India Act, 1934 3[(hereinafter referred to as a scheduled State Co -operative Bank )], shall maintain in India by way of cash reserve with itself or by way of balance in a current account with the Reserve Bank or the State Co-operative Bank of the State concerned or by wa y of net balance in current accounts, or, in the case of a primary co -operative bank, with the central co -operative bank of the district concerned, or in one or more of the aforesaid ways, a sum equivalent to 4[such per cent. ] of the total of its demand an d time liabilities in India, as on the last Friday of the second preceding fortnight 5[as the Reserve Bank may specify, by notification in the official Gazette, from time to time having regard to the needs for securing the monetary stability in the country ] and shall submit to the Reserve Bank before the fifteenth day of every month a return showing the amount so held on alternate Friday during a month with particulars of its demand and time liabilities in India on such Fridays or if any such Friday is a pu blic holiday under the Negotiable Instruments Act, 1881 (26 of 1881), at the close of business on the preceding working day. Explanation .In this section and in section 24 (a) liabilities in India shall not include (i) the paid -up capital or the reserv es or any credit balance in the profit and loss account of the co -operative bank; (ii) any advance taken from a State Government, the Reserve Bank, 6*** the Exim Bank, 7[the Reconstruction Bank], 8[the National Housing Bank]], the National Bank 9[, the Sm all Industries Bank,] or from the National Co -operative Development 1. Subs. by Act 1 of 1984, s. 42, for clause ( j) (w.e.f. 29 -3-1985). 2. Subs. by Act 4 of 2013, s. 14, for State Co -operative Bank (w.e.f. 18 -1-2013) 3. Subs. by s. 14, ibid., for (hereinafter referred to as a scheduled State Co -operative Bank). (w.e.f. 18 -1-2013). 4. Subs. by s. 14, ibid., for at least three per cent. (w.e.f. 18 -1-2013). 5. Ins. by s. 14, ibid. (w.e.f. 18 -1-2013). 6. The words the Development Bank omitted by s. 14, ibid. (w.e.f. 18 -1-2013). 7. Ins. by Act 62 of 1984, s. 71 and the Third Schedule (w.e.f. 20 -3-1985). 8. Ins. by Act 53 of 1987, s. 56 and the Second Schedule (w.e.f. 9 -7-1988). 9. Ins. by Act 39 of 1989, s. 53 and the Second Schedule (w.e.f. 7 -3-1990). 80 Corporation established under section 3 of the National Co -operative Development Corporation Act, 1962 (26 of 1962) by the co -operative bank; (iii) in the case of a State or central co -operative bank, also any deposit of money with it representing the reserve fund or any part thereof maintained with it by any other co-operative society within its area of operation, and in the case of a central co - operative bank, also an advance taken by i t from the State co -operative bank of the State concerned; (iv) in the case of a primary co -operative bank, also any advance taken by it from the 1[co-operative bank ] of the State concerned or the central co -operative bank of the district concerned; (v) in the case of any co -operative bank, which has granted an advance against any balance maintained with it, such balance to the extent of the amount outstanding in respect of such advance; and (vi) in the case of any co -operative bank, the amount of any advan ce or other credit arrangement drawn and availed of against approved securities; (b) fortnight shall mean the period from Saturday to the second following Friday, both days inclusive; (c) net balance in current accounts shall, in relation to a co -opera tive bank, mean the excess, if any, of the aggregate of the credit balances in current account maintained by that co-operative bank with the State Bank of India or a subsidiary bank or 2[a corresponding new bank or IDBI Bank Ltd.], over the aggre gate of the credit balances in current accounts held by the said banks with such co -operative bank; (d) for the purpose of computation of liabilities, the aggregate of the liabilities of a co-operative bank to the State Bank of India, a su bsidiary bank, a corresponding new bank, a Regional Rural Bank, a banking company or any other financial institution notified by the Central Government in this behalf shall be reduced by the aggregate of the liabilities of all such banks and institutions t o the co -operative bank; (e) any cash with a co -operative bank or any balance held by a co -operative bank with another bank, shall not, to the extend such cash or such balances represents the balance in, or investment of, Agricultural Credit Stabilisation Fund of such co -operative bank, be deemed to be cash maintained in India. 3[(1A) If the balance held by co -operative bank referred to in sub -clause ( cci) of clause ( c) of section 56 of the Banking Regulation Act, 1949, at the close of business on any day i s below the minimum specified under sub -section ( 1), such co -operative bank shall, without prejudice to the provisions of any other law for the time being in force, be liable to pay to the Reserve Bank, in respect of that day, penal interest at a rate of t hree per cent. above the bank rate on the amount by which such balance falls short of the specified minimum, and if the shortfall continues further, the penal interest so charged shall be increased to a rate of five per cent. above the bank rate in respect of each subsequent day during which the default continues. (1B) Notwithstanding anything contained in this section, if the Reserve Bank is satisfied, on an application in writing by the defaulting co -operatrive bank, that such defaulting co -operative bank had sufficient cause for its failure to comply with the provisions of sub -section ( 1), it may not demand
ative bank had sufficient cause for its failure to comply with the provisions of sub -section ( 1), it may not demand the payment of the penal interest. 1. Subs. by Act 4 of 2013, s. 14, for State Co -operative Bank (w.e.f. 18 -1-2013). 2. Subs. by s. 14, ibid., for a corresponding new bank (w.e.f. 18 -1-2013). 3. Ins. by s. 14, ibid. (w.e.f. 18-1-2013). 81 (1C) The Reserve Bank may, for such period and subject to such conditions as may be specified, grant to any co -operative bank such exemptions from the provisions of this section as it thinks fit with reference to all or any of its officers or with reference to the whole or any part of its assets and liabilities.] (2) The Reserve Bank may, for the purposes of this secti on and section 24, specify from time to time, with reference to any transaction or class of transactions, that such transaction or transactions shall be regarded as liability in India of a co -operative bank, and, if any question arises as to whether any tr ansaction or class of transactions shall be regarded for the purposes of this section and section 24, as liability in India of a co -operative bank, the decision of the Reserv e Bank thereon shall be final.] (k) for section 19, the following section shall be substituted, namely: 19. Restriction on holding shares in other co -operative societies. No co -operative bank shall hold shares in any other co -operative society except to such extent and subject to such conditions as the Reserve Bank may specify in tha t behalf: Provided that nothing contained in this section shall apply to (i) Shares acquired through funds provided by the State Government for that purpose; (ii) in the case of a central co -operative bank, the holding of shares in the State co - operative bank to which it is affiliated; (iii) in the case of a primary co -operative bank, the holding of shares in the central co - operative bank to which it is affiliated or in the State co -operative bank of the State in which it is registered: Provided further th at where any shares are held by a co -operative bank in contravention of this section at the commencement of the Banking Laws (Application to Co -operative Societies) Act, 1965 (23 of 1965) the co -operative bank shall without delay report the matter to the R eserve Bank and shall, notwithstanding anything contained in this section, be entitled to hold the shares for such period and on such conditions as the Reserve Bank may specify. ; 1* * * * * 2[(m) in section 20A, in sub -section ( 1), (i) the words a nd figures Notwithstanding anything to the contrary contained in section 293 of the Companies Act, 1956 (1 of 1956), shall be omitted; (ii) in clause ( a), for the words any of its directors the words any of its past or present directors shall be subs tituted;] 1* * * * * (o) in section 22, (i) for sub -sections ( 1) and ( 2), the following sub -sections shall be substituted, namely: (1) Save as hereinafter provided, no co -operative society shall carry on banking business in India unless 3* * * * * 1. Clause ( l), (n) omitted by Act 39 of 2020, s. 4 (w.e.f. 1 -4-2021). 2. Subs. by Act 1 of 1984, s. 42 (w.e.f. 15 -2-1984). 3. Omitted by Act 4 of 2013, s. 14 (w.e.f. 18 -1-2013). 82 (b) it is a co -operative bank and holds a licence issued in that behalf by the Reserve Bank, subject to such conditions, if any, as the Reserve Bank may deem fit to impose: Provided that nothing in this sub -section shall apply to a co -operative so ciety, not being a primary credit society or a co -operative bank carrying on banking business at the commencement of the Bank ing Laws (Application to Co -operative Societies) Act, 1965 (23 of 1965), for a period of one year from such commencement. 1[Provid ed further that nothing in this sub -section shall apply to a primary credit society carrying on banking business on or before the commencement of the Banking Laws (Amendment) Act, 2012, for a period of one year or for such further period not exceeding three years, as the Reserve Bank may, after recording the reasons in writing for so doing, extend.] 2[(2) Every co -operative society carrying on business as a co - operative bank at the commencement of the Banking Laws (Application to Co -operative So cieties) Act, 1965, (23 of 1965) shall before the expiry of three months from such commencement, every co - operative bank which comes into existence as a result of the division of any other co - operative society carrying on business as a co -operative bank, or the amalgamation of two or more co -operative societies carrying on banking business shall, before the expiry of three months from its so coming into existence, 3[every primary credit society which had become a primary co -operative bank on or before the commencement of the Banking Laws (Amendment) Act, 2012 (4 of 2013), shall before the expiry of three months from the date on which it had become a primary co -operative bank] and every co -operative society 4*** shall before commencing banking business in I ndia, apply in writing to the Reserve Bank for a licence under this section: Provided that nothing in clause ( b) of sub -section ( 1) shall be deemed to prohibit (i) a co -operative society carrying on business as a co -operative bank at the commencement of the B anking Laws (Application to Co -operative Societies) Act, 1965 (23 of 1965); or (ii) a co -operative bank which has come into existence as a result of the division of any other co -operative society carrying on business as a co -operative bank, or the amalgamation of two or more co -operative societies carrying on banking business at the commencement of the Banking Laws (Application to Co -operative Societies) Act, 1965 (23 of 1965) or at any time 5[thereafter ]; 6* * * * * from carrying on banking business until it is granted a licence in pursuance of this section or is, by a notice in writing, notified by the Reserve Bank that the licence cannot be granted to it.] 7[(ii) sub -section ( 3A) shall be omitted; (iii) in sub -section ( 4), in clause ( iii), the words , brackets, figure and letter and sub-section ( 3A) shall be omitted;] 1. Ins. by Act 4 of 2013, s. 14 (w.e.f. 18 -1-2013). 2. Subs. by Ac t 1 of 1984, s. 42, for sub -section (2) (w.e.f. 15 -2-1984). 3. Subs. by Act 4 of 2013, s. 14, for every primary credit society which becomes a primary co -operative bank after such commencement shall before the expiry of three months from the date on whi ch it so becomes a primary co -operative bank (w.e.f. 18 -1-2013). 4. The words other than a primary credit society omitted by s. 14, ibid. (w.e.f. 18 -1-2013). 5. Subs. by s. 14, ibid., for thereafter; or (w.e.f. 18 -1-2013). 6. Clause ( iii) omitted by s. 14, ibid. (w.e.f. 18 -1-2013). 7. Subs. by Act 1 of 1984, s. 42, for sub -clause (ii) (w.e.f. 15 -2-1984). 83 1[22A. Validation of licences granted by Reserve Bank to multi -State co -operative societies. Notwithstanding anything contained in any law or, judgment delivered or decree or order of any court made, (a) No licence, granted to a multi -State co -operative society by the Reserve Bank under section 22, which was subsisting on the date of commencement of the Banking Regulation (Amendment) and Miscellaneous P rovisions Act, 2004 (24 of 2004), shall be invalid or be deemed ever to have been invalid merely by the reason of such judgment, decree or order; (b) Every licence, granted to a multi -State co -operative society by the Reserve Bank under section 22, which w as subsisting on the date of commencement of the Banking Regulation (Amendment) and Miscellaneous Provisions Act, 2004 (24 of 2004), shall be valid and be deemed always to have been validly granted in accordance with law; (c) A multi -State co -operative society whose application for grant of licence for carrying on banking business was pending with the Reserve Bank on the date of commencement of the Banking Regulation (Amendment) and Miscellaneous Provisions Act, 2004 (24 of 2004) shall be eligible to carry on banking business until it is granted a licence in pursuance of section 22 or is, by a notice in writing notified by the Reserve Bank that the licence cannot be granted to it;] 2* * * * * 3[(q) in section 24, 4* * * * * 5* * * * * (iii) in sub -section ( 3), for the proviso, the following proviso shall be substituted, namely: Provided that every co -operative bank, other than a primary co -operative bank, shall also furnish within the said period, a copy of the said return to the National Bank. ; 5* * * * * * 6[(qq) after section 24, the following section shall be inserted, namely: 24A. Power to exempt. Without prejudice to the provisions of section 53, the Reserve Bank may, by notification in the Official Ga zette, declare that, for such period and subject to such conditions as may be specified in such notification the whole or any specified therein, shall not apply to any co - operative bank or class of co -operative banks, with reference to all or any of the o ffices of such co -operative bank or banks, or with reference to the whole or any part of the assets and liabilities of such co -operative bank or banks]; 7* * * * * (rii) in section 27, for sub -section ( 3), the following sub -section shall be substitu ted, namely: (3) Every co -operative bank, other than a primary co - operative bank, shall submit a copy of the return which it submits to the Reserve Bank, under sub -section ( 1) also to the National Bank and the powers exercisable by the Reserve Bank unde r sub -section ( 2) may 1. Ins. by Act 24 of 2004, s. 2 (w.e.f. 24 -9-2004) . 2. Clause ( p) omitted by Act 39 of 2020, s. 4 (w.e.f. 1 -4-2021). 3. Subs. by Act 1 of 1984, s. 42, for clause ( g) (w.e.f. 29 -3-1985). 4. Omitted by Act 4 of 2013, s. 14 (w.e.f. 18 -1-2013). 5. Subs. by Act 39 of 2020, s. 4,for sub -clause ( ii) and ( iv) (w.e.f. 1 -4-2021). 6. Ins. by Act 1 of 1984, s. 42 (w.e.f. 15 -2-1984). 7. Clauses ( r), (ria) omitted by Act 39 of 2020, s. 4 (w.e.f. 1 -4-2021). 84 also be exercised by the National Bank in relation to co -operative banks, other than primary co-operative banks. (s) for 1[section 29], the following section shall be substituted, namely: 29. Accounts and balance -sheet. (1) At the expiration of each year ending with the 30th day of June 2[or at the expiration of a period of twelve months ending with such date as the Central Government may, by notification in the Official Gazette, specify in this behalf,] every co -operative bank, in respect of all business transacted by it, shall prepare with reference to that year 1[or the period] a balance -sheet and profit and loss account as on the last working day of the year 1[or the period] in the Forms set out in the Third Schedule or as near t hereto as circumstances admit. (2) The balance -sheet and profit and loss account shall be signed by the manager or the principal officer of the bank and where there are more than three directors of the bank, by at least three of those directors, or where there are not more than three d irectors, by all the directors. (3) The Central Government, after giving not less than three months' notice of its intention so to do by a notification in the Official Gazette, may from time to time by a like notification ame nd the Forms set out in the Third Schedule: ] 3[Provided that with a view to facilitating the transition from one period of accounting to another period of accounting under this sub -section, the Central Government may, by order published in the Official Gaz ette, make such provisions as it considers necessary or expedient for the preparation of, or for other matters relating to, the balance -sheet or profit and loss account in respect of the concerned year or period, as the case may be.] 4* * * * * 5[(t) in section 31, 6* * * * * (ii) for the second proviso, the following proviso shall be substituted, namely: Provided further
* * (ii) for the second proviso, the following proviso shall be substituted, namely: Provided further that a co -operative bank, other than a primary co -operative bank shall furnish such returns also to the National Bank ;] 7* * * * * * 7* * * * * * (w) in section 35, (i) in sub -section ( 1), (a) for the words and figures section 235 of the Companies Act, 1956 (1 of 1956), the words any law relating to co -operative societies for the time being in force shall be substituted; 8[(b) the following proviso shall be inserted at the end, namely: 1. Subs. by Act 4 of 2013, s. 14, for sections 29 and 30 (w.e.f. 18 -1-2013). 2. Ins. by Act 54 of 1991, s.2 (w.e.f. 20 -12-1991). 3. The proviso ins. by Act 54 of 1991, s. 2. 4. Clause ( sa) omitted by Act 39 o f 2020, s. 4 (w.e.f. 1 -4-2021). 5. Subs. by Act 61 of 1981, s. 61 and the Second Schedule (w.e.f. 12 -7-1982). 6. Clause ( i) omitted by Act 39 of 2020, s. 4 (w.e.f. 1 -4-2021). 7. Clause ( u), (v) omitted by s. 4, ibid. (w.e.f. 1 -4-2021). 8. Subs. by Act 1 of 1984, s. 42, for item ( b) (w.e.f. 15 -2-1984). 85 Provided that the Reserve Bank may, if it considers it necessary or expedient so to do, cause an inspection to be made of a primary co -operative bank under this sub-section by one or more officers of a State co -operative bank in the State in which such primary co -operative bank is registered. ]; (ii) in sub -section ( 4), clause ( b) shall be omitted; 1[(iii) after sub -section ( 4), the following sub -section shall be inserted, namely: (4A) Without prej udice to the provisions of sub -section ( 4), the Reserve Bank may, if it considers it necessary or expedient so to do supply a copy of the report on any inspection or scrutiny to the State co -operative bank and the R egistrar of co -operative societies of the State in which the bank which has been inspected or whose affairs have been scrutinised is registered. ] 2[(iv)] in sub -section ( 6), for the expressions regional rural banks and regional rural bank , wherever th ey occur, the expressions co-operative banks other than primary co - operative banks and co-operative bank other than a primary co -operative bank shall, respectively be substituted.] 3[(v)] the Explanation shall be omitted; 4* * * * * * 4* * * * * * 4* * * * * * 4* * * * * * 5[(zaa) after section 36AA of the principal Act, the following sections shall be inserted, namely: 36AAA. Supersession of Board of directors of a 6[co-operative bank ].(1) Where the Reserve Bank is satisfied that in the public interest or for preventing the affairs of a 6[co- operative bank ] being conducted in a manner detrimental to the interest of the depositors or of the 6[co-operative bank ] or for securing the proper management of the 6[co-operative bank ], it is necessary so to do, the Reserve Bank may, for reasons to be recorded in writing, by order, supersede the Board of directors of such 6[co-operative bank ] for a period not exceeding five years as may be specified in the order, which may be extended from ti me to time, so, however, that total period shall not exceed five years. 7[Provided that in the case of a co -operative bank registered with the Registrar of Co - operative Societies of a State, the Reserve Bank shall issue such order in consultation with the concerned State Government seeking its comments, if any, within such period as the Reserve Bank may specify. ;] (2) The Reserve Bank may, on super session of the Board of directors of the 6[co-operative bank ] under sub -section ( 1) appoint an Administrator f or such period as it may determine. (3) The Reserve Bank may issue such directions to the Administrator as it may deem appropriate and the Administrator shall be bound to follow such directions. 1. Ins. by Act 1 of 1984, s. 42 (w.e.f. 15 -2-1984). 2. Sub -clause ( iii) renumbered as sub -clause ( iv) by s. 42, ibid. (w.e.f. 15 -2-1984). 3. Sub -clause ( iv) renumbered as sub -clause ( v) by s. 42, ibid. (w.e.f . 15-2-1984). 4. Clause ( x), (y), (z) and ( za) omitted by Act 39 of 2020, s. 4 (w.e.f. 1 -4-2021). 5. Subs. by Act 24 of 2004, s. 2, for clause ( zaa) (w.e.f. 24 -9-2004). 6. Subs. by Act 39 of 2020, s. 4, for multi -State co -operative bank (w.e.f. 1 -4-2021 ). 7.The proviso ins. by s. 4, ibid. (w.e.f. 1 -4-2021). 86 (4) Upon making the order of super session of the Board of dir ectors of a 6[co-operative bank ], (a) The chairman, managing director and other directors as from the date of super session of the Board shall vacate their offices as such; (b) All the powers, functions and duties which may, by or under t he provisions of the Multi -State Co -operative Societies Act, 2002 (39 of 2002) or this Act or any other law for the time being in force, be exercised and discharged by or on behalf of the Board of directors of such a 1[co-operative bank ] or by a resolution passed in general meeting of such co -operative bank, shall, until the Board of directors of such co -operative bank is reconstituted, be exercised and discharged by the Administrator appointed by the Reserve Bank under sub -section ( 2): Provided that the po wer exercised by the Administrator shall be valid notwithstanding that such power is exercisable by a resolution passed in the general meeting of such multi - State co -operative bank. (5) (a) The Reserve Bank may constitute a committee of three or more perso ns who have experience in law, finance, banking, administration or accountancy to assist the Administrator in discharge of his duties. (b) The committee shall meet at such times and places and observe such rules of procedure as may be specified by the Rese rve Bank. (6) The salary and allowances to the Administrator and the members of the committee constituted by the Reserve Bank shall be such as may be specified by the Reserve Bank and be payable by the concerned 1[co-operative bank ]. (7) On and befor e expi ration of period of super session of the Board of directors as specified in the order issued under sub -section ( 1), the Administrator of the 1[co-operative bank ] shall call the general meeting of the society to elect new directors. (8) Notwithstanding anyth ing contained in any other law or in any contract, or bye -laws of a 1[co-operative bank ], no person shall be entitled to claim any compensation for the loss or termination of his office. (9) The Administrator appointed under sub -section ( 2) shall vacate of fice immediately after the Board of directors of the multi -State co -operative society has been constituted. 2[(10) The provisions of section 36ACA shall not apply to a co -operative bank.] 3* * * * * 36AAC. Reimbursement to Deposit Insurance Corpora tion by liquidator or transferee bank. Where a multi -State co -operative bank, being an insured bank within the meaning of the Deposit Insurance and Credit Guarantee Corporation Act, 1961 (47 of 1961), is wound up and the Deposit Insurance Corporation has b ecome liable to the depositors of the insured bank under sub -section ( 1) or sub -section ( 2) of section 16 of that Act, the Deposit Insurance Corporation shall be reimbursed by the liquidator or such other person in the circumstances, to the extent and in t he manner provided in section 21 of that Act. (zab) In section 36AD, sub -section ( 3) shall be omitted; ; 4[(zb) Part IIC shall be omitted;] 1. Subs. by Act 39 of 2020, s. 4, for multi -State co -operative bank (w.e.f. 1 -4-2021). 2. Ins. by s. 4, ibid. (w.e.f. 1 -4-2021). 3. Section 36AAB omitted by s. 4, ibid. (w.e.f. 1 -4-2021). 4. Subs. b y s. 4, ibid., for clause ( zb) (w.e.f. 1 -4-2021). 87 1[(zc) in section 46, 2* * * * * (ii) in clause ( a) of the Explanation , after the words includes a , the wor ds co-operative society shall be inserted;] 3* * * * * * (ze) section 49 shall be omitted; 3* * * * * * 4[(zg) in section 49B, references to Central Government shall be construed as references to Central Registrar or Registrar of Co -operative Societies, as the case may be, under the law under which a co -operative bank is registered ;;] 5* * * * * * (zi) section 51 shall be omitted; 6[(zj) after section 53, the following section shall be inserted, namely: -- 53A. Powers to exempt co -operative banks in certain cases. Notwithstanding anything contained in any other provisions of this Act, the Reserve Bank may, from time to time, on being satisfied that it is necessary so to do, declare, by notification in the Official Gazette, that the provisions of item (iii) of clause ( b) of sub -section ( 1) and sub -section ( 2), of section 10, clause ( a) of sub -section ( 2) of section 10A, sub -section ( 1A) of section 10B and clause ( b) of sub -section ( 1) of section 35B of this Act shall not apply to a c o-operative bank or class of co -operative banks, either generally or for such period as may be specified therein, subject to such conditions, limitations or restrictions as it may think fit to impose. ;;] 7[(zji) in section 54, after the expression Reser ve Bank , wherever it occurs, the expression or the National Bank shall be inserted.] (zk) for section 55 and the First Schedule, the following section shall be substituted, namely: 55. Act 18 of 1891 and Act 46 of 1949 to apply in relation to co -opera tive banks. (1) The Bankers Books Evidence Act, 1891 (18 of 1891) shall apply in relation to a co -operative bank as it applies in relation to a bank as defined in section 2 of that Act. (2) The Banking Companies (Legal Practitioners' Clients' Accounts) Ac t, 1949 ( shall apply in relation to a co -operative bank as it applies in relation to a banking company as defined in section 2 of that Act. ; 1. Subs. by Act 1 of 1984, s. 42, for clause ( zc) (w.e.f. 15 -2-1984). 2. Clause ( i) omitted by Act 39 of 2020, s. 4 (w.e.f. 1 -4-2021). 3. clauses ( zd) and ( zf) omitted by s. 4, ibid. (w.e.f. 1 -4-2021). 4. Subs. by s. 4, ibid., for clause ( zg) (w.e.f. 1 -4-2021). 5. Clause ( zh) omitted by s. 4, ibid. (w.e.f. 1 -4-2021). 6. Subs. by s. 4, ibid., for clause ( zj) (w.e.f. 1 -4-2021). 7. Ins. by Act 61 of 1981, s. 61 and the Second Schedule (w.e.f. 1 -5-1982). 88 (zl) for the Third Schedule and the Fourth Schedule, the following Schedule shall be substituted, namely: THE THIRD SCHEDULE (see section 29) FORM A FORM OF BALANCE -SHEET CAPITAL AND LIABILITIES PROPERTY AND ASSETS 1. CAPITAL: (i) Authorised Capital Shares of Rs.each .Shares of Rs. Each (ii) Subscribed Capital ................Shares of Rs................. ........each ....................Shares of Rs.........................each ....................................................................... (iii) Amount called up On.......Shares at Rs.................each less called unpaid On.........Shares at Rs ................. each less called unpaid of ( iii) above, held by (a) Individuals ............... (b) Co-operative institutions ............... (c) State Government ............... 2. RESERVE FUND AND OTHER
institutions ............... (c) State Government ............... 2. RESERVE FUND AND OTHER RESERVES: (i) Statutory Reserve (ii) Agricultura l (Credit Stabilization Fund) (iii) Building Fund (iv) Dividend Equalization Fund (v) Special Bad Debts Reserve (vi) Bad and Doubtful Debts Reserve (vii) Investment Depreciation Reserve (viii) Other Funds and Reserves (to be specified) 3. PRINCIPAL/SUBSID IARY STATE PARTNERSHIP FUND ACCOUNT: For share capital of: (i) Central co -operative banks (ii) Primary agricultural credit societies ........... (iii) Other societies .............................. 4. DEPOSITS AND OTHER ACCOUNTS (i) Fixed deposits * (a) Ind ividuals (b) Central co -operative banks (c) Other societies (ii) Savings Bank Deposits (a) Individuals (b) Central co -operative banks (c) Other societies ............. Rs. P. Rs.P 1. CASH: In hand with Reserve Bank 1[ National Bank] St ate Bank of India, State Co -operative Bank and Central Co -operative Bank 2. BALANCES WITH OTHER BANKS (i) Current deposits (ii) Savings bank deposits (iii) Fixed deposits 3. MONEY AT CALL AND SHORT NOTICE 4. INVESTMENTS (i) In Central and State Governmen t securities (at book value) Face value Rs. ............... Market value Rs. ............... (ii) Other Trustee securities (iii) Shares in co -operative institutions other than in item (5) below .................... (iv) Other investments (to be specified) .................... 5. INVESTMENT OUT OF THE PRINCIPAL /SUBSIDIARY STATE PARTNERSHIP FUND S: In shares of: (i) Central co -operative banks (ii) Primary agricultural credit societies (iii) Other societies 6. ADVANCES : (i) Short -term loans, cash credits, overdrafts and bills discounted Of which secured against: (a) Government and other approved securities (b) Other tangible securities@ of the advances, amount due from individuals Of the advances, amount overdue Considered bad and doubtful o f recovery (ii) Me dium -term loans Rs. P. Rs. P. 1. Ins. by Act 61 of 1981, s. 61 and the Second Schedule (w.e.f. 1 -5-1982). 89 Of which secured against: CAPITAL AND LIABILITIES PROPERTY AND ASSETS (iii) Current deposits (a) Individuals ** (b) Central co -operative banks (c) Other societies (iv) Money at call and short notice 5. BORROWINGS : (i) From the Reserve Bank of India 1[the National Bank]/State/Central co-operative bank: (a) Short -term loans, cash credits and overdrafts Of which secured against: (A) Government and other approved securities (B) Other ta ngible securities@ (b) Medium -term loans of which secured against: (A) Government and other approved securities (B) Other tangible securities@ (c) Long -term loans Of which secured against: (A) Government and other approved securities (B) Other tangible sec urities@ (ii) From the State Bank o f India (a) Short -term loa ns, cash credits and overdrafts Of which secured against: (A) Government and other approved securities (B) Other tangible securities@ (b) Medium -term loans Of which secured Rs.P. Rs. P (a) Government and other approved securities (b) Other tang ible securities@ Of the advances, amount due from individuals .................... Of the advances, amount overdue: ...................................... Considered bad and doubtful of recovery .................................... (iii) long -term loans Of which secured against: (a) government and other approved securities (b) other tangible securities@ Of the advances, amount due from individuals ..................... Of the advances, amount over due: Considered bad and doubtful of recovery 7. INTEREST R ECEIVABLE : Of which overdue Considered bad and doubtful of recovery 8. BILLS RECEIVABLE BEING BILLS FOR COLLECTION AS per contra 9. BRANCH ADJUSTMENTS 10. PREMISES LESS DEPRECIATION 111. FURNITURE AND FIXTURES LESS DEPRECIATION 12. OTHER ASSETS (to be specified) Rs. P. Rs.P 1. Ins. by Act 61 of 1981, s. 61 and the Second Schedule (w.e.f. 1 -5-1982). 90 against (A) Governmen t and other approved securities (B) Other tangible securities@ (c) Long -term loans Of which secured against: (A) Government and other approved securities (B) Other tangible securities@ 13. NON -BANKING ASSETS ACQUIRED IN SATISFACTION OF CLAIMS (stating mode of valuation) 14. PROFIT AND LOSS 91 CAPITAL AND LIABILITIES PROPERTY AND ASSETS (iii) From the State Government (a) Short -term loans Of w hich secured against (A) Government and other approved securities (B) Other tangible securities@ (b) Medium -term loans Of which secured against: (A) Government and other approved securities (B) Other tangible securities@ (c) Long -term loans Of which secur ed against: (A) Government and other approved securities (B) Other tangible securities@ (iv) Loan from other sources (source and security to be specified) 6.BILLS FOR COLLECTION BEING BILLS RECEIVABLE As per contra 7. BRANCH ADJUSTMENTS 8. OVERDUE INTERE ST RESERVE 9. INTEREST PAYABLE 10. OTHER LIABILITIES (i) Bills payable (ii) Unclaimed dividends (iii) Suspense . . . . . .. (iv) Sundries . . . . . .. 11. PROFIT AND LOSS Profit as per last balance -sheet Less appropriations Add profit for the year brought from the Profit and Loss Account Total . . . . . . . . CONTINGENT LIABILITIES (i) Outstanding liabilities for guarantees issued (ii) Others Total. . . . . .. Rs. P. Rs.P Total . . . . . . . . Rs. P. Rs.P NOTES Fixed deposits will include reserve fund deposits of societies, employees provident fund deposits, staff security deposits, recurring deposits, cash certificates, etc. * Under the item individuals deposits from institutions other than cooperative banks a nd societies may be included. Borrowings and Advances .Short -term loans will be for periods up to 15 months, medium -term loans from 15 months to 5 years and long -term loans over 5 years. @ other tangible security will include borrowings against gol d and gold ornaments, repledge of goods, mortgage of land, etc. 92 General Instructions. The corresponding figures (to the nearest rupees, if so desired) for the year immediately preceding the year to which the balance -sheet relates should be shown in sepa rate columns. FORM B FORM OF PROFIT AND LOSS ACCOUNT Profit and loss account for the year ended ________ EXPENDITURE INCOME 1. Interest on deposits, borrowings, etc. . . . 2. Salaries and allowances and provident fund. . . . . . . . . . 3. Directors and local committee members fees and allowances . . . . . . . 4. Rent, taxes, insurance, lighting, etc. . . 5. law charges . . . . . . . 6. Postage, telegrams and telephone Charges 7. Auditor s fees . . . . . . . 8. Depreciation on and repairs to property 9. Stationery, printing and advertisement, etc. 10. Loss from sale of or dealing with non-banking assets. . . . . . . 11. Other expenditure . . . . . . 12. Balance of profit . . . . . . Total . . . . . . . Rs. P. Rs. P. 1. Interest a nd discount . . . . 2. Commission, exchange and brokerage . . . . . . . . . 3. Subsidies and donations . . . 4. Income from non -banking assets and profit from sale of or dealing with such assets . . 5. Other receipts . . . . . . . 6. Loss (if any) . . . . . . . . Total. . . . . . . . Rs.P. Rs.P. General Instructions . The corresponding figures (to the nearest rupee, if so desired) for the year immediately preceding the year to which the profit and los s account relates should be shown in separate columns. . 93 THE FIRST SCHEDULE (See section 55) AMENDMENTS Year No. Short title Amendments 1 2 3 4 1934 2 The Reserve Bank of India Act, 1934 (1) In section 17, to clause (15A), the following shall be added, namely : and under the Banking Companies Act, 1949 ( 4 of 1949) . (2) (a) Section 18 shall be renumbered as sub - section ( 1) of that section and in sub-section ( 1), as so renumbered, (i) in clause ( 3) after the words of that section , the following wor ds shall be added, namely: or when the loan or advance, is made to banking company as defined in the Banking Companies Act, 1949 (4 of 1949), against such other form of security as the Bank may consider sufficient ; (ii) for the words under this section wherever the occur, the words under this sub - section shall be substituted; (b) after sub -section ( 1) as so renumbered, the following sub -section shall be inserted, namely: (2) Where a banking company to which a loan o r advance has been made under the provisions of clause ( 3) of sub -section ( 1) is wound up, any sums due to the Bank in respect of such loan or advance, shall subject only to the claims, if any, of any other banking company in respect of any prior loan or a dvance made by such banking company against any security, be a first charge on the assets of the banking company. (3) In section 42, for sub -section ( 6) the following sub -section shall be substituted, namely: (6) The bank shall, save as hereinafter prov ided, by notification in the Gazette of India, (a) direct the inclusion in the Second Schedule of any bank not already so included which carries on the business of banking in any Province of India and which (i) has a paid -up capital and reserves of an ag gregate value of not less than five lakhs of rupees, and (ii) satisfies the Bank that its affairs are not being conducted in a manner detrimental to the interests of its depositors; and (iii) is a company as defined in clause ( 2) of section 2 of the Indian Companies Act, 1913 (7 of 1913) or a corporation or a company incorporated by or under any law in force in any place outside the Provinces of India; (b) direct the exclusion from that Schedule of any scheduled bank (i) the aggregate value of whose paid -up capital and reserves becomes at any time less than five lakhs of rupees, or (ii) which is, in the opinion of the Bank after making an inspection under section 35 of the Banking Companies Act, 1949, conducting its affairs to the detriment of the interests of its depositors, or (iii) which goes into liquidation or otherwise ceases to carry on banking business: 94 Year No. Short title Amendments 1 2 3 4 Provided that the Bank may, on application of the scheduled bank concerned and subject to such conditions, if any, as it may impose, defer the making of a direction under sub -clause ( i) or sub -clauses ( ii) of clause ( b) for such period as the bank considers reasonable to give the scheduled bank and opportunity of increasing the aggregate value of it s paid -up capital and reserves to not less tha n five lakhs of rupees or, as the case may be, of removing the defects
capital and reserves to not less tha n five lakhs of rupees or, as the case may be, of removing the defects in the conduct of its affairs; (c) alter the description is that Schedule whenever any s cheduled bank changes its name. Explanation .In thi s sub -section the expression value means the real or exchangeable value and not the nominal value which may be shown in the books of the 163 bank concerned; and if any dispute arises in computing the aggregate value of the paid up capital and reserves of a bank, a determination thereof by the Bank shall be final for the purposes of this sub -section. THE SECOND SCHEDULE .[Repeals ] Rep. by the Repealing and Amending Act , 1957 (36 of 1957), s. 52 and the First Schedule (w.e.f. 17-9-1957). THE THIRD SCHEDULE (See section 29) 1[FORM A FORM OF BALANCE SHEET Balance Sheet of ____________________ (here enter name of the Banking Company) Balance Sheet as on 31st March _________________________ (Year) (000's omitted) Capital and Liabilities Schedul e As on 31 -3- As on 31 -3- (current year) (previous year) Capital Reserves and surplus Deposits Borrowings Other liabilities and provisions TOTAL : 1 2 3 4 5 ___________ ___________ 1. Subs. by S.O. 240 (E), dated 26th March, 1992 (w.e.f. 26 -3-1992). 95 Capital and Liabilities Schedule As on 31 -3- As on 31 -3- (current year) (previous year) ASSETS Cash and Balances with Reserve Bank of India Balances with Banks and money at call and short notice Investments Advances Fixed Assets Other Assets TOTAL : Contingent liabilities Bill for collection 6 7 8 9 10 11 12 SCHEDULE I CAPITAL As on 31 -3___ As on 31 -3____ (current year) (previous year) I. FOR NATIOINALISED BANKS Capital (Fully owned by Central Government) II. FOR BANKS INCORPORATED OUTSIDE INDIA Capital (i) (The amount brou ght in by banks by way of Start -up capital as prescribed by RBI should be shown under this head) (ii) Amount of deposit kept with the RBI under Section 11( 2) of the Banking Regulation Act, 1949. TOTAL: III. FOR OTHER BANKS Authorised Ca pital (Shares of Rs..... each) Issued Capital (Shares of Rs..... each) Subscribed Capital (Shares of Rs..... each) Called -up C apital (Shares of Rs..... each) Less : Calls unpaid Add : Forfeited shares 96 SCHEDULE 2 RESERVES AND SURPLUS As on 31 -3__ As on 31 -3__ (current year) (previous year) I. Statutory Reserves Opening Balance Additions during the year Deductions during the year II. Capital Reserves Opening Balance Additions during the year Deductions during the year III. Share premium Opening Bal ance Additions during the year Deductions during the year IV. Revenue and other Reserves Opening Balance Additions during the year Deductions during the year V. Balance of Profit and Loss Account ____________ ____________ TOTAL : (I, II, III, IV and V) ____________ ____________ SCHEDULE 3 DEPOSITS As on 31 -3__ As on 31 -3__ (current year) (previous year) A. I. Demand Deposits (i) From Banks (ii) From others II. Savings Bank Deposits III. Term Deposits (i) From Banks (ii) From others ____________ ____________ TOTAL : (I, II, III) ____________ ____________ B. (i) Deposits of branches in India (ii) Deposits of branches outside In dia ________ ____________ TOTAL _________ ___________ 97 SCHEDULE 4 BORROWINGS As on 31 -3__ As on 31 -3__ (current year) (previous year) I. Borrowing in India (i) Reserve Bank of India (ii) Other Banks (iii) Other institutions and agencies II. Borrowings outside India ____________ ____________ TOTAL : (I and II) ___________ ____________ Secured borrowings included in I and II above Rs. SCHEDULE 5 OTHER LIABILITIES AND PROVISIONS As on 31 -3__ As on31 -3__ (current year) (previous year) I. Bills payable II. Inter -office adjustments (net) III. Interests accrued IV. Others (Including p rovisions) ____________ ____________ TOTAL : ____________ ____________ SCHEDULE 6 CASH AND BALANCES WITH RESERVE BANK OF INDIA As on 31 -3__ As on 31 -3__ (current year) (previous year) I. Cash in hand (Including foreign currency notes) II. Balanc e with Reserve Bank of India (i) in Current Account (ii) in other Accounts ____________ ____________ TOAL : (I and II) ____________ ____________ SCHEDULE 7 BALANCES WITH BANKS AND MONEY AT CALL AND SHORT NOTICE As on 31 -3__ As on 31 -3__ (current year) (previous year) I. In India (i) Balances with banks (a) In Current Accounts 98 (b) In Other Deposit Accounts (ii) Money at call and short notice (a) With banks (b) With other institutions ____________ ____________ TOTAL : (I an d II) __________ __ ____________ II. Outside India (i) in Current Accounts (ii) in Other Deposit Accounts (iii) Money at call and short notice ____________ _______ _____ TOTAL : (I, II and III) ____________ ____________ ____________ ____________ GRAND TOTAL : (I and II) ____________ ____________ SCHEDULE 8 INVESTMENTS As on 31 -3__ As on 31 -3__ (current year) (previous year) I. Investments in India in (i) Government Securities (ii) Other approved securities (iii) Shares (iv) Debentures and Bonds (v) Sub sidiaries and/or joint ventures (vi) Others (to be s pecified) ____________ ____________ TOTAL : ____________ ____________ II. Investments outside India in (i) Government securities (Including local authorities) (ii) Subsidiaries a nd/or joint ventures abroad (iii) Othe r investments (to be specified) ____________ Total : ____________ GRAND TOTAL : (I and II) ____________ ____________ 99 SCHEDULE 9 ADVANCES As on 31 -3__ As on 3 1-3__ current year) (previous year) A. (i) Bills purchased and discounted (ii) Cash credits, overdrafts and loans repayable on demand (iii) Term loans ____________ ____________ TOTAL : ____________ ____________ B. (i) Secured by tangible assets (ii) Covered by Bank/Government Guarantees (iii) Unsecured TOTAL : ____________ ____________ ____________ ____________ C. I. Advances in India (i) Priority sectors (ii) Public sector (iii) Banks (iv) Others ____________ ______ ______ TOTAL : ____________ ____________ II. Advances Outside India (i) Due from banks (ii) Due from others (a) Bills purchased and discounted (b) Syndicated loans (c) Others ____________ ____________ TOTAL : ________ ___________ ____________ ____________ GRAND TOTAL : (C.I. & C.II) ____________ ____________ SCHEDULE 10 FIXED ASSETS As on 31 -3__ As on 31 -3__ (current year) (previous year) I. Premises At cost as on 31st March of the preceding year 100 Additions during the year Deductions during the year Depreciation to date II. Other Fixed Assets (including furniture and fixtures) At cost as on 31st March of the preceding year Additions during the year Deductions dur ing the year Depreciation to date TOTAL : (I and II) ____________ ____________ ____________ ____________ SCHEDULE 11 OTHER ASSETS As on 31 -3__ As on 31 -3__ (current year) (previous year) I. Inter -office adjustment (net) II. Interest accrued III. T ax paid in advance/tax deducted at source IV. Stationery and stamps V. Non -banking assets acquired in satisfaction of claims VI. Others* ____________ ____________ TOTAL : ____________ ____________ *In case there is any unadjusted balance of loss the sam e may be shown under this item with appropriate foot -note. SCHEDULE 12 CONTINGENT AVAIBILITIES As on 31 -3__ As on 31 -3__ (current year) (previous year) I. Claims against the bank not acknowledged as debts II. Liability for partly paid investments III. Liability on account of outstanding forward exchange contracts IV. Guarantees given on behalf of constituents (a) In India (b) Outside India V. Acceptances, endorsements and other obligations VI. Other items for which the bank is contingently Liable _____ _______ ____________ TOTAL : ____________ ____________ 101 FORM B (000s omitted) FORM OR PROFIT AND LOSS ACCOUT FOR THE YEAR ENDED ON 31 ST MARCH (YEAR) Schedule No. Year ended 31 -3_ (current year) Year ended 31 -3_ (previous year) I. INCOME Interest earned Other Income TOTAL : 13 14 II. EXPENDITURE Interest expended Operating expenses Provisions and contingencies 15 16 TOTAL : III. PROFIT/LOSS Net Profit/Loss ( -) for the year Profit/Loss ( -) brought forward TOTAL : IV. APPROPRIATIONS Transfer to statutory reserves Transfer to other reserves Transfer to Government/proposed dividend Balance carried over to balance sheet TOTAL : SCHEDULE 13 INTEREST EARNED Year en ded on Year ended on 31-3__ 31-3__ (current year ) (previous year) I. Int erest/discount on advance/bills II. Income on investments 102 III. Interest on balances with Reserve Bank of I ndia and other inter -bank funds IV. Others ______________ ______________ TOTAL : ______________ ______________ SCHEDULE 14 OTHER INCOME Year ended on Year ended on 31-3__ 31-3___ (current year) (previous year) I. Commission, exchange and brokerage II. Profit on sale of investments Less : Loss on sale of investments III. Prof it on revaluation of investments Less : Loss on revaluation of investments IV. Profit on sale of land, buildings and other assets Less : Loss on sale of land, buildings and other assets V. Profit on exchange transactions Less : Loss on exchange transaction s VI. Income earned by way of dividends etc. from subsidiaries/companies and/or joint ventures abroad/in India VII. Miscellaneous Income ______________ ______________ TOTAL : ______________ ______________ NOTE : Under items II to V loss figures may be shown in brackets. SCHEDULE 15 INTEREST EXPENDED Year ended on Year ended on 31-3__ 31-3__ (current year) (previous year) I. Interest on deposits II. Interest on Reserve Bank of India/ Inter -back borrowings III. Others TOTAL : ______________ ______________ ______________ ______________ 103 SCHEDULE 16 OPERATING EXPENSES Year ended on Year ended on 31-3......... 31-3........ ......... (current year) (previous year) I. Payments to and provisions for employees II. Rent, taxes and lighting III. Printing and stationery
I. Payments to and provisions for employees II. Rent, taxes and lighting III. Printing and stationery IV. Advertisement and publicity V. Depreciation on Bank's property VI. Director' s fees, allowances and expenses VII. Auditors' fees and exp enses (Including branch auditors) VIII. Law charges IX. Postages. Telegrams, Telephones, etc. X. Repairs and maintenance XI. Insurance XII. Other expenditure ____ ______ __ ____________ TOTAL : ______________ __________ 104 1[THE FOURTH SCHEDULE [See section 45D( 2)] LIST OF DEBTORS 1. The official liquidator shall from time to time submit list of debtors to the High Court, each list being verified by an affidavit. 2. Every such list shall contain the following particulars: (a) names and addresses of the debtors; (b) amount of debt due to the banking company by each debtor; (c) rate of interest, if any, and the date up to which such interest has been calculated in the case of each debtor; (d) description of papers, writings, and documents, if any, relating to each debt; (e) relief or reliefs claimed against each debtor. 3. (a) In every such list, the official liquidator shall distinguish between the debts for which the banking company holds and security other than a personal security and the debts for which no security or only a personal security is given; (b) In the case of secured debts, particulars of th e securities claimed by the ban king company, and whenever possible their estimated value, and the names and addresses of person or persons, if any, having an interest in the securities or the right of redemption therein; (c) In case the debt is guaranteed by any person or persons, the name and address of the guarantor or guarantors with particulars as to the extent to which the debt is guaranteed and description of documents, papers or writings in support of such guarantee. 4. If the debtor is adjudged insolvent either before or after he has been included in any such list, but before such list is settled, the name and address of the assignee or the receiver of his estate, as th e case may be, should be stated in, or added to, the list. 5. If the original debtor dies either before or after he has been included in any such list, but before such list is settled, there shall be substituted in his place the names and addresses of his legal representatives as far as the official liquidator is able to ascertain.] 1 Ins. by Act 52 of 1953, s. 12 (w.e.f. 3 0-12-1953). 105 1[THE FIFTH SCHEDULE (See section 36AG) PRINCIPLES OF COMPENSATION 1. The compensation to be given under section 36AG shall be an amount equal to the value of the assets of the acquired bank as on the day immediately before the appointed day, computed in accordance with the provisions of Part I of this Schedule less the total amount of liabilities thereof computed in accordance with the provisions of Part II of this Sch edule. Part I .Assets For the purposes of this Part assets means the total of the following: (a) the amount of cash in hand and with the Reserve Bank and the State Bank of India (including foreign currency notes which shall be converted at the market r ate of exchang e); (b) the amount of balances with any bank, whether on deposit or current account, and money at call and short notice, balance held outside India being converted at the market rate of exchange: Provided that any balance which are not reali sable in full shall be deemed to be debts and valued accordingly: (c) the market value, as on the day immediately before the appointed day, of any securities, shares debentures, bonds and other investments, held by the bank concerned. Explanation .For the purposes of this clause, (i) securities of the Central and State Governments [other than the securities specified in sub - clauses (ii) and ( iii) of this Explanation ] maturing for redemption, within five years from the appointed day shall be valued at the face value or the market value, whichever is higher; (ii) securities of the Central Government, such as Post Office Certificates and Treasury Savings Deposit Certificates and any other securities or certificates issued or to be issued under the Small Savin gs Scheme of the Central Government, shall be valued at their face value or the encashable value of the market value, as on the day immediately before the appointed day, whichever is higher; (iii) where the market value of any Government security such as the zamindari abolition bonds or other similar security in respect of which the principal is payab le in insta lment, is not ascertain able or is, for any reason, not considered as reflecting the fair value thereof or as otherwise appropr iate, the security shall be valued at such an amount as is considered reasona ble having regard to the instal ments of principal and interest remaining to be paid, the period during which such instal ments are payable, the yield of any security, issued by the Government to which the security pertains and having the same or approximately the same maturity, and other relevant factors; (iv) where the market value of any security, share, debenture, bond or other investment is not considered reasonable by reason of its having been affected by abnormal factors, the investment may be valued on the basis of its average market value over any reasonable period; (v) where the market value of any security, share, debenture, bond or other investment is not ascertainable, on ly such value, if any, shall be taken into account as is considered reasonable having regard to the financial position of the issuing concern, the dividend paid by it during the preceding five years and other relevant factors; (d) the amount of advances (i ncluding loans, cash, credits, overdrafts, bills purchased and discounted), and other debts, whether secured or unsecured, to the extent to which they are reasonably considered recoverable, having regard to the value of the security, if any, the operations 1 Ins. by Act 58 of 1968, s. 22 (w.e.f. 1 -2-1969). 106 on the account, the reported worth and respectability of the borrower, the prospects of realisation and other relevant considerations; (e) the value of any land or buildings; (f) the total amount of premia paid, in respect of all leasehold properties, red uced in the case of each such premium by an amount which bears to such premium the same proportion as the expired term of the lease in respect of which such premium shall have been paid bears to the total term of the lease; (g) the written down value as p er books, or the realisable value, as may be considered reasonable, of all f urniture, fixture and fittings; (h) the market or realisable value, as may be a appropriate, of the other assets appearing on the books of the bank, no value being allowed for capi talised expenses, such as share selling commission, organisational expenses and brokerage, losses incurred and similar other items. Part II .Liabilities For the purpose of the Part liabilities means the total amount of all outside liabilities existing on the appointed day, and all contingent liabilities which the Central Government or the transferee bank may reasonably be expected to be required to be out of its own resources on or after the appointed day and where the acquired bank is a banking company i ncorporated outside India, includes the liabilities of the offices and branches in India of the acquired bank to its offices and branches outside India. 2. If the acquired bank is not incorporated in India, the assets or, as the case may be, the liabilitie s of the bank shall be, for the purposes of Part 1 and Part 11, and subject to the other provisions therein, the assets and liabilities of the offices of the bank situated in India. COMPENSATION PAYABLE TO SHAREHOLDERS 3. Every shareholder of the acquired bank to whom the compensation is payable, shall be given such amount as compensation, as bears to the total compensation, calculated in accordance with the provisions of paragraph 1, the same proportion as the amount of paid -up capital of the shares held b y the shareholder bears to the total -up capital of the acquired bank. CERTAIN DIVIDENDS NOT TO BE TAKEN INTO ACCOUNT 4. No separate compensation shall be payable for any profits or any dividends in respect of any period immediately preceding the appointed day, for which, in the ordinary course, profits would have been transferred or dividend declared after the appointed day.]
THE INDUSTRIAL DISPUTES (BANKING AND INSURANCE COMPANIES) ACT, 1949 ACT NO. 54 OF 19491 [14th December , 1949.] An Act to provide for the adjudication of industrial disputes concerning certain b anking and insurance companies. WHEREAS it is expedient to provide for the adjudication of industrial disputes concerning banking and insurance companies having branches or other establi shments in more than one State; It is hereby enacted as follows: 1. Short title and extent .(1) This Act may be called the Industrial Disputes (Banking and Insurance Companies) Act, 1949. (2) It extends to the whole of India 2[except the State of Jammu and Kashmir ]. 2. Definitions .In this Act, unless there is anything repugnant in the subject or context, the expressions award , banking company , industrial dispute and insurance company have the meanings respectively assigned to them in section 2 of the Industrial Disputes Act, 1947 (14 of 1947) as amended by this Act. 3. [Amendment of section 2, Act 14 of 1947. ] Rep. by the Repealing and Amending Act, 1952 (48 of 1952 ), s. 2 and the First Schedule . 4. Prohibition of references by 3[State ] Governments of certain industrial disputes for adjudi cation, inquiry or settlement .Notwithstanding anything contained in any other law, it shall not be competent for a State Government or any officer or authority subordinate to such Government to refer an industrial dispute concerning any banking or insurance company, or any matter relating to such dispute, to any tribunal or other authority for adjudication, inquiry or settlement. 5. Abatement of proceedings relating to disputes pending before 3[State ] tribunals and reference of such disputes to tribunals constitu ted by the Central Government .(1) Where under any law any industrial dispute concerning any banking or insurance company or any matter relating to such dispute has, before the 30th day of April , 1949, been referred by a 3[State ] Government or any officer or authority subordinate to such Government to any tribunal or other authority for adjudication or settlement and any proceedings in respect of or arising out of such reference were immediately before that date pending before any tribunal or other authority, then on the aforesaid date such refence shall be deemed to have been withdrawn and all such proceedings shall have abated. (2) The Central Government shall, as soon as may be after the commencement of this Act, by order in writing, refer under section 10 of the said Act every industrial dispute to which the provisions of sub-section ( 1) apply to an Industrial Tribunal constituted under the said Act for adjudication. 6. Powers of Central Government to refer disputes in respect of which awards or decisions hav e been made for adjudication .(1) Where any award or decision has been made in respect of any industrial dispute concerning any banking or insurance company by an y tribunal or other authority constituted or appointed by a 3[State ] Government, or any officer or authority subordinate to such Government, then the Central Government may, notwithstanding that the said award or decision is in force, by order in writing r efer under section 10 of the said Act the dispute or any of the matters in dispute to an Industrial Tribunal constituted under the said Act for adjudication and stay the implementation of the award or decision so made or of any part of such award or decision until the Industrial Tribunal to 1. The Act has been extended to the Scheduled Areas of the State of Orissa by Orissa Reg. 1 of 1956 and amended in U. P. by U.P. Act 25 of 1951. 2. Subs. by Act 3 of 1951, s. 3 and the Schedule, for except Part B States (w.e.f. 1 -4-1951). 3. Subs. by the A.O. 1950, for Provincial. . Vide Notification No. S.O. 3912 (E), dated 30th October, 2019, this Act is made applicable to the Union territory of Jammu and Kashmir and the Union territory of Ladakh. 3 which the dispute or any of the matters in dispute is referred for adjudication has submitted its award or for such furt her period as the Central Gov ernment may consider necessary. (2) After the Industrial Tribunal to which the dispute or any of the matters in dispute has been so referred for adjudication has submitted its award under sub -section ( 1) of section 15 of the sa id Act, the Central Government may, by order in writing, declare that the award or decision previously made in respect of such dispute by the tribunal or other authority constituted or appointed by the 1[State ] Government or any officer or authority subord inate to such Government or such part of that award or decision as may be specified in the order shall cease to be in operation. 7. Re peal of Ordinance 28 of 1949 .(1) The Industrial Disputes (Banking and Insurance Companies) Second Ordina nce, 1949 ( 28 of 1949) is hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken in the exercise of any power conferred by or under the said Ordinance shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act were in force on the day on which such thing was done or action taken. 1. Subs. by the A.O. 1950, for Provincial.