The Prevention of Corruption Act, 1988 (Complete Notes) By Dabangg Lawyer

The Prevention of Corruption Act, 1988 (Complete Notes) By Dabangg Lawyer

Table Of Contents -

1. Legislative History, Object and Scope of the Act, Definitions of Public Servant and Public Duty
2. Appointment of Special Judges
3. Offences and Punishments
4. Investigation into cases
5. Sanction for Prosecution Special Procedure : Change in Rules of Evidence and Criminal Procedure (Sections 20-24)

1. Legislative History, Object and Scope of the Act, Definitions of Public Servant and Public Duty

1)        Introduction

The Prevention of Corruption Act, of 1988 is an important piece of legislation in India aimed at combating corruption among public servants and other individuals. It was enacted to replace the earlier Prevention of Corruption Act, of 1947, and has undergone several amendments to strengthen the legal framework for preventing and prosecuting corruption.

2)        Legislative History:

 

(1)     Pre-Independence Era: Before India gained independence in 1947, there were no specific anti-corruption laws at the national level. Some states had their own laws to deal with corruption, but there was a need for comprehensive legislation to address corruption at the national level.

(2)     Prevention of Corruption Act, 1947: In the post-independence era, the Prevention of Corruption Act, of 1947 was enacted to address corruption among public servants. This act defined various corrupt practices and prescribed penalties for offenders. However, over time, it was felt that the act lacked teeth and needed significant amendments to make it more effective.

(3)     Enactment of the Prevention of Corruption Act, 1988: In response to the need for a more robust anti-corruption law, the Prevention of Corruption Act, 1988 was enacted. This act introduced several significant changes and updates to the previous legislation. It expanded the definition of public servants, added new offences related to corruption, and increased the penalties for corrupt practices.

(4)     Amendments: Since its enactment in 1988, the Prevention of Corruption Act has undergone several amendments to address emerging challenges and strengthen the fight against corruption. Some of the notable amendments include:

(a)     The Criminal Law (Amendment) Act, 2013: This amendment introduced significant changes, such as redefining certain terms, introducing stricter penalties, and provisions related to the prevention of bribery of foreign public officials.

(b)    The Prevention of Corruption (Amendment) Act, 2018: This amendment focused on issues like the need for prior sanction for prosecuting public servants, and it introduced the concept of "undue advantage."

(c)     Various other amendments were made to align the law with changing circumstances and to meet international obligations related to anti-corruption efforts.

3)        Objectives

(1)     Prevention of Corruption: The primary objective of the act is to prevent corruption among public servants, including government officials, members of law enforcement agencies, and individuals employed in public offices. It aims to create a deterrent against corrupt practices by imposing stringent penalties on those found guilty.

(2)     Punishment for Corruption: The act seeks to punish individuals involved in corrupt activities, including the acceptance of bribes, illegal gratification, and abuse of official positions for personal gain.

(3)     Promotion of Transparency: It aims to promote transparency and accountability in government and public administration by criminalizing corrupt practices that undermine the principles of integrity and honesty.

(4)     Protection of Whistleblowers: The act includes provisions to protect whistleblowers who report corruption. It encourages individuals to come forward with information about corrupt practices without fear of retaliation.

 

4)        Scope 

(1)     Definition of Offenses: The Prevention of Corruption Act, of 1988, defines various corrupt practices, including bribery, illegal gratification, and abuse of official positions. It specifies the actions that constitute corruption and prescribes penalties for offenders.

(2)     Applicability to Public Servants: The act primarily applies to public servants, including government officials, officers of public sector undertakings, and individuals employed in public offices. It covers a wide range of public servants to ensure comprehensive coverage.

(3)     Private Sector: The act is not limited to public servants. It also applies to individuals working in the private sector who are involved in corrupt practices related to public servants. This means that individuals in the private sector who offer bribes or engage in other corrupt activities with public servants can be prosecuted under the act.

(4)     Bribery of Foreign Public Officials: The act includes provisions related to the bribery of foreign public officials, aligning India's laws with international anti-corruption conventions. It criminalizes offering bribes to foreign public officials for obtaining or retaining business or other advantages.

(5)     Prior Sanction for Prosecution: The act includes provisions that require prior sanction from the appropriate authority for prosecuting public servants, ensuring that frivolous or politically motivated cases are not filed against them.

(6)     Penalties: The act prescribes penalties for various offences, including imprisonment and fines, which are designed to deter individuals from engaging in corrupt practices.

(7)     Whistleblower Protection: The act includes provisions to protect whistleblowers from victimization, ensuring that individuals who report corruption are not subjected to harassment or retaliation.

 

1)        Public Duty:  Sec 2 (b)

The act defines "public duty" as a duty in the discharge of which the State, the public or the community at large has an interest. This definition is significant because it helps determine whether a particular action or omission falls within the scope of the act.

2)        Public Servent :  Sec 2 (c)

"Public Servant" under the Prevention of Corruption Act, 1988 can be:

(1)     Government Employees: Anyone who works for the government and is compensated, either with a salary or fees/commissions, for carrying out public duties.

(2)     Local Authority Employees: People employed by local government bodies.

(3)     Employees of Government-Related Organizations: Individuals working in organizations established by government laws or controlled or financially aided by the government, including government-owned companies.

(4)     Judges and Legal Authorities: Judges and those authorized by law to make legal decisions, such as arbitrators or individuals appointed by courts.

(5)     Election Officials: People responsible for tasks like maintaining voter rolls and conducting elections.

(6)     Duty-Oriented Officeholders: Those holding positions requiring them to perform public duties.

(7)     Cooperative Society Leaders: Presidents, secretaries, or office-bearers of registered cooperative societies involved in agriculture, industry, trade, or banking that receive government financial aid.

(8)     Education and Examination Personnel: Individuals involved in universities, including professors, teachers, or employees, and anyone providing services for examinations on behalf of universities or public authorities.

(9)     Employees of Assisted Institutions: Office-bearers or employees of educational, scientific, social, cultural, or other institutions that receive financial support from the government.

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2. Appointment of Special Judges

Section 3 - Appointment of Special Judges:

The Central Government or State Government can appoint special judges through an official notification in the Gazette for specific areas or cases.

They are authorized to try two types of offences:

(1)     Any offence punishable under this Act.

(2)     Any conspiracy, attempt, or abetment related to the offences mentioned in (a).

To be eligible for appointment as a special judge under this Act, a person must have served as a Sessions Judge, Additional Sessions Judge, or Assistant Sessions Judge under the Code of Criminal Procedure, 1973.

Section 4 - Cases Triable by Special Judges:

(1)     Special Judges, designated under the Prevention of Corruption Act, are the only ones allowed to handle corruption cases mentioned in Section 3(1) of the Act. Regular courts can't handle these cases.

(2)     The Special Judge responsible for a specific area handles cases related to corruption that occur within that area. If there are multiple Special Judges in an area, the Central Government can specify which one should handle a particular case.

(3)     Special Judges can also try other related offences not specifically listed in Section 3. For instance, if a person is accused of corruption and other crimes under regular criminal law, these can be tried together in one trial.

·       Speedy Trial:

 The Act stresses the need for a quick trial. Ideally, a corruption case should be completed within two years. If it takes longer, the Special Judge must provide reasons for the delay. Extensions, up to six months at a time, are allowed, but the total trial duration should not typically exceed four years.

Section 5 - Procedure and Powers of Special Judge:

(1)     Legal Proceedings: A special Judge can begin legal actions against people accused of corruption without a preliminary step. During the trial, they follow the same rules as magistrates.

(2)     Offering Pardon: If someone involved in corruption cooperates fully by sharing all the information they know about the crime and others involved, the special Judge can grant them a pardon.

(3)     Regular Legal Procedures: Except for certain exceptions, regular legal procedures apply in cases before a special Judge. The Special Judge's court is like a Court of Session, and the person prosecuting the case is a public prosecutor.

(4)     Specific Provisions: Certain sections of the Code of Criminal Procedure, 1973, such as sections 326 and 475, are specifically applied to proceedings before a special Judge. In these cases, the special Judge is treated as a magistrate.

(5)     Sentencing Authority: A special Judge has the authority to impose any legally permissible sentence on a person who has been convicted of a corruption offence.

(6)     Exercise of Powers: When handling cases involving offences under this Act, a special Judge has the same powers and functions as a District Judge under the Criminal Law Amendment Ordinance, 1944.

Section 6 - Power to Try Summarily:

(1)     If a special Judge is trying a case involving a public servant who has allegedly violated specific orders related to the Essential Commodities Act, 1955, or other specified orders, the special Judge can use a quicker "summary" trial method, even if regular procedures call for a longer process.

 

(2)     Summary Trial Rules: During a summary trial, certain rules (sections 262 to 265 of the Code of Criminal

Procedure) apply, making the process more streamlined.

(3)     Maximum Sentence: In a summary trial, if the accused is found guilty, the special Judge can only give a maximum sentence of one year in prison.

(4)     Exception to Summary Trial: If the special Judge believes that a longer prison term might be necessary or for other reasons, they can decide to stop the summary trial and proceed with a more standard trial, following the procedures for warrant cases by magistrates.

(5)     No Appeal for Short Sentences: If the special Judge sentences the accused to one month or less in prison and fines not exceeding two thousand rupees (with or without additional orders), there can be no appeal. However, if the sentence exceeds these limits, the convicted person can appeal

 

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3.  Offences & Punishments

Sections	Offence Description	Punishment
7	Public Servant Being Bribed : (1)     Seeking undue advantage improperly (2)      Receiving undue advantage for dishonest job performance (3)     Performing job improperly due to receiving undue advantage	Imprisonment: 3 to 7 years       & Fine
7(a)	Taking Undue Advantage to Influence Public Servants:                                                    Obtaining undue advantage to influence a public servant improperly Using corrupt or illegal means or personal influence	Imprisonment: 3 to 7 years        & Fine
8	Bribing a Public Servant : Giving undue advantage to induce improper job performance or rewarding dishonest performance  Exceptions: (1)     Person Forced to give Such undue advantage (2)     Reporting the incident to authorities within 7 days (3)     Commercial organisations shall be fined.	Imprisonment: Upto 7 years       & Fine
9	Bribing a public servant by a commercial organisation	Fine Only
10	Person in charge of a commercial organisation to be guilty of offence u/sec 9 : For Example- Director, manager, secretary or other officer	Imprisonment: 3 to 7 years & Fine
11	Public servant obtaining undue advantage without consideration : Public servant unfairly benefits without good reason or for too little in return	Imprisonment: 6 months to 5 years & Fine
12	Punishment for abetment of offences : Encouraging or assisting another person in committing an offence	Imprisonment: 3 to 7 years  & Fine
13	Criminal misconduct by a public servant : (1)     Misappropriation or improper conversion of entrusted property (2)     Improper enrichment while in office	Imprisonment: 4 to 10 years  & Fine
14	Punishment for habitual offenders: Subsequent offence after a prior conviction under this Act	Imprisonment: 5 to 10 years & Fine
15	Punishment for Attempt : Attempting to commit offences described in Section 13(1)(a)	Imprisonment: 2 to 5 years & Fine
16	Matters to be taken into consideration for fixing the fine :	The court considers the value of the property  or unexplained wealth

 

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4. Investigation into cases

Section 17. Persons authorised to investigate

Normally, the police can investigate crimes, but for certain cases only the following officers can investigate :

(1)     Delhi - an Inspector of Police

(2)     Big cities - only an Assistant Commissioner of Police

(3)     Other places -  a Deputy Superintendent of Police or an equivalent rank officer

Approval Requirements - However, they can't investigate without permission from a Metropolitan Magistrate or a Magistrate of the first class, and they can't make an arrest without a warrant, except in special cases where the State Government allows an Inspector of Police to investigate without permission.

Section 17A: Enquiry, Inquiry, or Investigation of Offenses by Public Servants

No police officer can investigate an alleged offence committed by a public servant under this Act without prior approval if it is related to recommendations or decisions made by that public servant while performing their official duties.

·       Approval Requirements:

(1)     For Union government employees - the Central Government's sanction is required.

(2)     For State government employees - State Government's sanction is needed.

(3)     For other public servants - The authority that can remove them from their office should grant sanction.

(4)     Exceptions: Approval is not needed for cases involving the immediate arrest of a person caught accepting or attempting to accept an undue advantage for themselves or someone else.

Approval Timing - The relevant authority must communicate its decision under this section within three months. This period can be extended by one month if the authority provides written reasons for the extension.

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5. Sanction for Prosecution Special Procedure :

Change in Rules of Evidence and Criminal Procedure (Sections 20-24)

 

Section 19 - Previous Sanction Necessary for Prosecution

(1)      Sanction Requirement: Sanction Requirement: Before a court can start a case against a public servant for specific offences (listed as sections 7, 11, 13, and 15), prior approval or sanction is necessary. Who grants this sanction depends on the type of public servant:

1.        For Union government employees - the Central Government's sanction is required.

2.        For State government employees - State Government's sanction is needed.

3.        For other public servants - The authority that can remove them from their office should grant sanction.

 

This section also includes individuals who were in office at the time of the alleged offence, even if they have since left that office.

(2)     Exception: Generally, only police officers, investigation agency officers, or law enforcement authorities can request sanctions. Others can request it only if certain conditions are met, such as filing a complaint in court and not having it dismissed.

(3)     Sanction Timing: The authority should decide on granting sanction within three months, with a one-month extension allowed for legal consultation.

(4)     Legal Proceedings: Errors or irregularities in the sanctioning process shouldn't automatically invalidate legal proceedings or overturn judgments. The court should consider whether these errors resulted in a miscarriage of justice.

Section 20 - Presumption in Cases of Public Servants Accepting Undue Advantage

(1)     If a public servant is on trial for an offence under section 7 or section 11, and it's proven that they accepted, obtained, or tried to get an undue advantage for themselves or someone else from any person, there's a legal presumption.

(2)     This presumption means that unless proven otherwise, it's assumed that the public servant accepted or obtained the undue advantage either:

a)        As a motive or reward for doing a public duty improperly or dishonestly, whether they did it themselves or through another public servant, or

b)        Without a valid consideration or for a consideration that they knew was insufficient

Section21 - Accused person to be a competent witness

(1)     If someone is accused of a crime under this Act, they have the right to testify in their defence during the trial, but only if they want to. No one can force them to speak. If they choose to remain silent, it can't be used against them.

(2)     They can't be asked questions about other crimes they may have committed or their character unless it's relevant to the current case,

Section22 - The Code of Criminal Procedure, 1973 to apply subject to certain modifications

This section modifies the application of the Code of Criminal Procedure, 1973 to cases related to offences under this Act. Here are the key changes:

(1)     Section 243(1) - The accused must promptly or within the time allowed by the Court, provide a list of witnesses and documents he intends to use.

(2)     Section 309(2) - Proceedings cannot be delayed just because someone has filed an application under section 397.

(3)     Section 317(3) - Allowing the judge to continue the inquiry or trial even if the accused or their lawyer is absent, with the right for the accused to recall witnesses for cross-examination later.

(4)     Section 397(1) - if a party requests certain powers under this section, the court cannot immediately request the case records without giving the other party a chance to explain why it's necessary or if certified copies can be used instead.

Section23 - Particulars in a charge in relation to an offence under 1[section 13(1)(a)]

When someone is charged with an offense under section 13(1)(a), there's a special rule:

(1)     Instead of having to provide all the nitty-gritty details in the charge, such as listing every single item or giving exact dates, it's sufficient to mention the property involved and the period during which the offence is said to have happened.

(2)     This simplified charge is still considered as one offence under the law.

(3)     But there's a limit: the time between the first and last date mentioned in the charge cannot be more than one year.

 

Written By :  Harshavardhan Prakash Deshmukh,

B.A.LL.B. :  Modern Law College, Pune

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