FUGITIVE ECONOMIC OFFENDERS ACT, 2018

FUGITIVE ECONOMIC OFFENDERS ACT, 2018

Preamble - FUGITIVE ECONOMIC OFFENDERS ACT, 2018

THE FUGITIVE ECONOMIC OFFENDERS ACT, 2018

[Act No. 17 of 2018]

[31st July, 2018]

PREAMBLE

An Act to provide for measures to deter fugitive economic offenders from evading the process of law in India by staying outside the jurisdiction of Indian courts, to preserve the sanctity of the rule of law in India and for matters connected therewith or incidental thereto.

Be it enacted by Parliament in the Sixty-ninth Year of the Republic of India as follows:--

Section 1 - Short title, extent and commencement

(1)     This Act may be called the Fugitive Economic Offenders Act, 2018.

(2)     It extends to the whole of India.

(3)     It shall be deemed to have come into force on the 21st day of April, 2018.

Section 2 - Definitions

(1)     In this Act, unless the context otherwise requires,--

(a)      "Administrator" means an Administrator appointed under sub-section (1) of section 15;

(b)      "benami property" and "benami transaction" shall have the same meanings as assigned to them under clauses (8) and (9) respectively of section 2 of the Prohibition of Benami Property Transactions Act, 1988 (45 of 1988);

(c)      "contracting State" means any country or place outside India in respect of which arrangements have been made by the Central Government with the Government of such country through a treaty or otherwise;

(d)      "Deputy Director" means the Deputy Director appointed under sub-section (1) of section 49 of the Prevention of Money-laundering Act, 2002 (15 of 2003);

(e)      "Director" means the Director appointed under sub-section (1) of section 49 of the Prevention of Money-laundering Act, 2002 (15 of 2003);

(f)       "fugitive economic offender" means any individual against whom a warrant for arrest in relation to a Scheduled Offence has been issued by any Court in India, who--

(i)       has left India so as to avoid criminal prosecution; or

(ii)      being abroad, refuses to return to India to face criminal prosecution;

(g)      "key managerial personnel" shall have the same meaning as assigned to it in clause (51) of section 2 of the Companies Act, 2013 (18 of 2013);

(h)     "notification" means a notification published in the Official Gazette and the expression "notify" shall be construed accordingly;

(i)       "person" includes--

(i)       an individual;

(ii)      a Hindu Undivided Family;

(iii)     a company;

(iv)    a trust;

(v)      a partnership;

(vi)    a limited liability partnership;

(vii)   an association of persons or a body of individuals, whether incorporated or not;

(viii)  every artificial juridical person not falling within any of the preceding sub-clauses; and

(ix)    any agency, office or branch owned or controlled by any of the above persons mentioned in the preceding sub-clauses;

(j)       "prescribed" means prescribed by rules made under this Act;

(k)      "proceeds of crime" means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a Scheduled Offence, or the value of any such property, or where such property is taken or held outside the country, then the property equivalent in value held within the country or abroad;

(l)       "Schedule" means the Schedule appended to this Act;

(m)    "Scheduled Offence" means an offence specified in the Schedule, if the total value involved in such offence or offences is one hundred crore rupees or more;

(n)     "Special Court" means a Court of Session designated as a Special Court under sub-section (1) of section 43 of the Prevention of Money-laundering Act, 2002 (15 of 2003).

(2)     The words and expressions used and not defined in this Act but defined in the Prevention of Money-laundering Act, 2002 (15 of 2003) shall have the meanings respectively assigned to them in that Act.

Section 3 - Application of Act

The provisions of this Act shall apply to any individual who is, or becomes, a fugitive economic offender on or after the date of coming into force of this Act.

Section 4 - Application for declaration of fugitive economic offender and procedure therefor

(1)     Where the Director or any other officer not below the rank of Deputy Director authorised by the Director for the purposes of this section, has reason to believe (the reasons for such belief to be recorded in writing), on the basis of material in his possession, that any individual is a fugitive economic offender, he may file an application in such form and manner as may be prescribed in the Special Court that such individual may be declared as a fugitive economic offender.

(2)     The application referred to in sub-section (1) shall contain--

(a)      reasons for the belief that an individual is a fugitive economic offender;

(b)      any information available as to the whereabouts of the fugitive economic offender;

(c)      a list of properties or the value of such properties believed to be the proceeds of crime, including any such property outside India for which confiscation is sought;

(d)      a list of properties or benami properties owned by the individual in India or abroad for which confiscation is sought; and

(e)      a list of persons who may have an interest in any of the properties listed under clauses (c) and (d).

(3)     The Authorities appointed for the purposes of the Prevention of Money-laundering Act, 2002 (15 of 2003) shall be the Authorities for the purposes of this Act.

Section 5 - Attachment of property

(1)     The Director or any other officer authorised by the Director, not below the rank of Deputy Director, may, with the permission of the Special Court, attach any property mentioned in the application under section 4 by an order in writing in such manner as may be prescribed.

(2)     Notwithstanding anything contained in sub-section (1) or section 4, the Director or any other officer, not below the rank of Deputy Director, authorised by the Director, may, by an order in writing, at any time prior to the filing of the application under section 4, attach any property--

(a)      for which there is a reason to believe that the property is proceeds of crime, or is a property or benami property owned by an individual who is a fugitive economic offender; and

(b)      which is being or is likely to be dealt with in a manner which may result in the property being unavailable for confiscation:

Provided that the Director or any other officer who provisionally attaches any property under this sub-section shall, within a period of thirty days from the date of such attachment, file an application under section 4 before the Special Court.

(3)     The attachment of any property under this section shall continue for a period of one hundred and eighty days from the date of order of attachment or such other period as may be extended by the Special Court before the expiry of such period.

(4)     Nothing in this section shall prevent the person interested in the enjoyment of the immovable property attached under sub-section (1) from such enjoyment.

Explanation.-- For the purposes of this sub-section, the expression "person interested", in relation to any immovable property includes all persons claiming or entitled to claim any interest in the property.

Section 6 - Powers of Director and other officers

The Director or any other officer shall, for the purposes of section 4, have 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)      discovery and inspection;

(b)      enforcing the attendance of any person, including any officer of a reporting entity and examining him on oath;

(c)      compelling the production of records;

(d)      receiving evidence on affidavits;

(e)      issuing commissions for examination of witnesses and documents; and

(f)       any other matter which may be prescribed.

Section 7 - Power of survey

(1)     Notwithstanding anything contained in any other provisions of this Act, where a Director or any other officer authorised by the Director, on the basis of material in his possession, has reason to believe (the reasons for such belief to be recorded in writing), that an individual may be a fugitive economic offender, he may enter any place--

(i)       within the limits of the area assigned to him; or

(ii)      in respect of which he is authorised for the purposes of this section, by such other authority, who is assigned the area within which such place is situated.

(2)     Where the Director or any other officer authorised by him, on the basis of material in his possession, has reason to believe (the reasons for such belief to be recorded in writing) that an individual may be a fugitive economic offender and it is necessary to enter any place as mentioned in sub-section (1), he may request any proprietor, employee or any other person who may be present at that time, to--

(a)      afford him the necessary facility to inspect such records as he may require and which may be available at such place;

(b)      afford him the necessary facility to check or verify the proceeds of crime or any transaction related to proceeds of crime which may be found therein; and

(c)      furnish such information as he may require as to any matter which may be useful for, or relevant to any proceedings under this Act.

(3)     The Director, or any other officer acting under this section may--

(i)       place marks of identification on the records inspected by him and make or cause to be made extracts or copies therefrom;

(ii)      make an inventory of any property checked or verified by him; and

(iii)     record the statement of any person present at the property which may be useful for, or relevant to, any proceeding under this Act.

Section 8 - Search and seizure

(1)     Notwithstanding anything contained in any other law for the time being in force, where the Director or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section, on the basis of information in his possession, has reason to believe (the reason for such belief to be recorded in writing) that any person--

(i)       may be declared as a fugitive economic offender;

(ii)      is in possession of any proceeds of crime;

(iii)     is in possession of any records which may relate to proceeds of crime; or

(iv)    is in possession of any property related to proceeds of crime, then, subject to any rules made in this behalf, he may authorise any officer subordinate to him to--

(a)      enter and search any building, place, vessel, vehicle or aircraft where he has reason to suspect that such records or proceeds of crime are kept;

(b)      break open the lock of any door, box, locker, safe, almirah or other receptacle for exercising the powers conferred by clause (a) where the keys thereof are not available;

(c)      seize any record or property found as a result of such search;

(d)      place marks of identification on such record or property, if required or make or cause to be made extracts or copies therefrom;

(e)      make a note or an inventory of such record or property; and

(f)       examine on oath any person, who is found to be in possession or control of any record or property, in respect of all matters relevant for the purposes of any investigation under this Act.

(2)     Where an authority, upon information obtained during survey under section 7, is satisfied that any evidence shall be or is likely to be concealed or tampered with, he may, for reasons to be recorded in writing, enter and search the building or place where such evidence is located and seize that evidence.

Section 9 - Search of persons

Notwithstanding anything contained in any other law for the time being in force--

(a)      if an authority, authorised in this behalf by the Central Government by general or special order, has reason to believe (the reason for such belief to be recorded in writing) that any person has secreted about his person or anything under his possession, ownership or control, any record or proceeds of crime which may be useful for or relevant to any proceedings under this Act, he may search that person and seize such record or property which may be useful for or relevant to any proceedings under this Act;

(b)      where an authority is about to search any person, he shall, if such person so requires, take such person within twenty-four hours to the nearest Gazetted Officer, superior in rank to him, or a Magistrate:

Provided that the period of twenty-four hours shall exclude the time necessary for the journey undertaken to take such person to the nearest Gazetted Officer, superior in rank to him, or the Magistrate's Court;

(c)      if the requisition under clause (b) is made, the authority shall not detain the person for more than twenty-four hours prior to taking him before the Gazetted Officer, superior in rank to him, or the Magistrate referred to in that clause:

Provided that the period of twenty-four hours shall exclude the time necessary for the journey from the place of detention to the office of the Gazetted Officer, superior in rank to him, or the Magistrate's Court;

(d)      the Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge such person but otherwise shall direct that search be made;

(e)      before making the search under clause (a) or clause (d), the authority shall call upon two or more persons to attend and witness the search and the search shall be made in the presence of such persons;

(f)       the authority shall prepare a list of record or property seized in the course of the search and obtain the signatures of the witnesses on the list;

(g)      no female shall be searched by anyone except a female; and

(h)     the authority shall record the statement of the person searched under clause (a) or clause (d) in respect of the records or proceeds of crime found or seized in the course of the search.

Section 10 - Notice

(1)     Where an application under section 4 has been duly filed, the Special Court shall issue a notice to an individual who is alleged to be a fugitive economic offender.

(2)     The notice referred to in sub-section (1), shall also be issued to any other person who has any interest in the property mentioned in the application under sub-section (2) of section 4.

(3)     A notice under sub-section (1) shall--

(a)      require the individual to appear at a specified place and time not less than six weeks from the date of issue of such notice; and

(b)      state that failure to appear on the specified place and time shall result in a declaration of the individual as a fugitive economic offender and confiscation of property under this Act.

(4)     A notice under sub-section (1) shall be forwarded to such authority, as the Central Government may notify, for effecting service in a contracting State.

(5)     The authority referred to in sub-section (4) shall make efforts to serve the notice within a period of two weeks in such manner as may be prescribed.

(6)     A notice under sub-section (1) may also be served to the individual alleged to be a fugitive economic offender by electronic means to--

(a)      his electronic mail address submitted in connection with an application for allotment of Permanent Account Number under section 139A of the Income-tax Act, 1961 (43 of 1961);

(b)      his electronic mail address submitted in connection with an application for enrolment under section 3 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (18 of 2016); or

(c)      any other electronic account as may be prescribed, belonging to the individual which is accessed by him over the internet, subject to the satisfaction of the Special Court that such account has been recently accessed by the individual and constitutes a reasonable method for communication of the notice to the individual

Section 11 - Procedure for hearing application

(1)     Where any individual to whom notice has been issued under sub-section (1) of section 10 appears in person at the place and time specified in the notice, the Special Court may terminate the proceedings under this Act.

(2)     Where any individual to whom notice has been issued under sub-section (1) of section 10 fails to appear at the place and time specified in the notice, but enters appearance through counsel, the Special Court may in its discretion give a period of one week to file a reply to the application under section 4.

(3)     Where any individual to whom notice has been issued under sub-section (1) of section 10 fails to enter appearance either in person or through counsel, and the Special Court is satisfied--

(a)      that service of notice has been effected on such party; or

(b)      that notice could not be served in spite of best efforts because such individual has evaded service of notice, it may, after recording reasons in writing, proceed to hear the application.

(4)     The Special Court may also give any person to whom notice has been issued under sub-section (2) of section 10 a period of one week to file a reply to the application under section 4.

Section 12 - Declaration of fugitive economic offender

(1)     After hearing the application under section 4, if the Special Court is satisfied that an individual is a fugitive economic offender, it may, by an order, declare the individual as a fugitive economic offender for reasons to be recorded in writing.

(2)     On a declaration under sub-section (1), the Special Court may order that any of the following properties stand confiscated to the Central Government--

(a)      the proceeds of crime in India or abroad, whether or not such property is owned by the fugitive economic offender; and

(b)      any other property or benami property in India or abroad, owned by the fugitive economic offender.

(3)     The confiscation order of the Special Court shall, to the extent possible, identify the properties in India or abroad that constitute proceeds of crime which are to be confiscated and in case such properties cannot be identified, quantify the value of the proceeds of crime.

(4)     The confiscation order of the Special Court shall separately list any other property owned by the fugitive economic offender in India which is to be confiscated.

(5)     Where the Special Court has made an order for confiscation of any property under sub-section (2), and such property is in a contracting State, the Special Court may issue a letter of request to a Court or authority in the contracting State for execution of such order.

(6)     Every letter of request to be transmitted to a contracting State under sub-section (5) shall be transmitted in such form and manner as the Central Government may, by notification, specify in this behalf.

(7)     The Special Court may, while making the confiscation order, exempt from confiscation any property which is a proceed of crime in which any other person, other than the fugitive economic offender, has an interest if it is satisfied that such interest was acquired bona fide and without knowledge of the fact that the property was proceeds of crime.

(8)     All the rights and title in the confiscated property shall, from the date of the confiscation order, vest in the Central Government, free from all encumbrances.

(9)     Where on the conclusion of the proceedings, the Special Court finds that the individual is not a fugitive economic offender, the Special Court shall order release of property or record attached or seized under this Act to the person entitled to receive it.

(10)   Where an order releasing the property has been made by the Special Court under sub-section (9), the Director or any other officer authorised by him in this behalf may withhold the release of any such property or record for a period of ninety days from the date of receipt of such order, if he is of the opinion that such property is relevant for the appeal proceedings under this Act.

Section 13 - Supplementary application

(1)     Where at any time after the institution of the application under section 4, any other property is discovered or identified which constitutes proceeds of crime or is property or benami property owned by the individual in India or abroad who is a fugitive economic offender liable to be confiscated under this Act, the Director or any other officer not below the rank of Deputy Director authorised by the Director for the purposes of this section, may file a supplementary application in the Special Court seeking confiscation of such properties.

(2)     The provisions of sections 4 to 12 shall, as far as may be, apply in relation to such application as they apply in relation to an application under section 4.

Section 14 - Power to disallow civil claims

Notwithstanding anything contained in any other law for the time being in force,--

(a)      on a declaration of an individual as a fugitive economic offender, any Court or tribunal in India, in any civil proceeding before it, may, disallow such individual from putting forward or defending any civil claim; and

(b)      any Court or tribunal in India in any civil proceeding before it, may, disallow any company or limited liability partnership from putting forward or defending any civil claim, if an individual filing the claim on behalf of the company or the limited liability partnership, or any promoter or key managerial personnel or majority shareholder of the company or an individual having a controlling interest in the limited liability partnership has been declared as a fugitive economic offender.

Explanation.--For the purposes of this section, the expressions-- 

(a) "company" means any body corporate and includes a firm, or other association of persons; and

(b) "limited liability partnership" shall have the same meaning as assigned to it in clause (n) of sub-section (1) of section 2 of the Limited Liability Partnership Act, 2008 (6 of 2009).

Section 15 - Management of properties confiscated under this Act

(1)     The Central Government may, by order published in the Official Gazette, appoint as many of its officers (not below the rank of a Joint Secretary to the Government of India) as it thinks fit, to perform the functions of an Administrator.

(2)     The Administrator appointed under sub-section (1) shall receive and manage the property in relation to which an order has been made under sub-section (2) of section 12 in such manner and subject to such conditions as may be prescribed.

(3)     The Administrator shall also take such measures, as the Central Government may direct, to dispose of the property which is vested in the Central Government under section 12:

Provided that the Central Government or the Administrator shall not dispose of any property for a period of ninety days from the date of the order under sub-section (2) of section 12.

Section 16 - Rules of evidence

(1)     The burden of proof for establishing--

(a)      that an individual is a fugitive economic offender; or

(b)      that a property is the proceeds of crime or any other property in which the individual alleged to be a fugitive economic offender has an interest, shall be on the Director or the person authorised by the Director to file the application under section 4.

(2)     Notwithstanding anything contained in any other law for the time being in force, where any person referred to in sub-section (2) of section 10 claims that any interest in any property was acquired bona fide and without knowledge of the fact that, such property constitutes proceeds of crime, the burden of proving such fact shall lie upon him.

(3)     The standard of proof applicable to the determination of facts by the Special Court under this Act shall be preponderance of probabilities.

Section 17 - Appeal

(1)     An appeal shall lie from any judgment or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law.

(2)     Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order appealed from:

Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days:

Provided further that no appeal shall be entertained after the expiry of period of ninety days.

Section 18 - Bar of jurisdiction

No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Special Court 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.

Section 19 - Protection of action taken in good faith

No suit, prosecution or other legal proceeding shall lie against the Central Government or Presiding Officer of the Special Court or Director or Deputy Director or any other officer authorised by the Director for anything which is in good faith done or intended to be done under this Act or any rule made there under.

Section 20 - Power of Central Government to amend Schedule

(1)     The Central Government may, having regard to the objects of this Act, and if it considers necessary or expedient so to do, by notification add to, or as the case may be, omit from the Schedule any offences specified therein.

(2)     Every such notification shall, as soon as after it is issued, be laid before each House of Parliament.

Section 21 - 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.

Section 22 - Application of other laws not barred

The provisions of this Act shall be in addition to and not in derogation of any other law for the time being in force.

Section 23 - Power to make rules

(1)     The Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Act.

(2)     In particular, and without prejudice to generality of the foregoing power, such rules may provide for all or any of the following matters, namely:--

(a)      the form and manner of filing application under sub-section (1) of section 4;

(b)      the manner of attachment of property under sub-section (1) of section 5;

(c)      other matters under clause (f) of section 6;

(d)      the procedure for conducting search and seizure under section 8;

(e)      the manner in which the notice shall be served under sub-section (5) of section 10;

(f)       any other electronic account under clause (c) of sub-section (6) of section 10;

(g)      the manner and conditions subject to which the Administrator shall receive and manage the property confiscated under sub-section (2) of section 15; and

(h)     any other matter which is required to be, or may be, prescribed or in respect of which provision is to be made by rules.

Section 24 - Laying of rules before Parliament

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 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.

Section 25 - Power to remove 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 may appear to be necessary for removing the difficulty:

Provided that no order shall be made under this section after the expiry of five years from the date of 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.

Section 26 - Repeal and saving

(1)     The Fugitive Economic Offenders Ordinance, 2018 (Ord. 1 of 2018), is hereby repealed.

(2)     Notwithstanding such repeal, anything done or any action taken under the said Ordinance, shall be deemed to have been done or taken under this Act.

Schedule - THE SCHEDULE

THE SCHEDULE

[See section 2(l) and (m)]

DR. G. NARAYANA RAJU,

Secretary to the Govt. of India.