Prohibition Of Corruption Act, 1988; With Amendments BHAVNI SAHAI BASICS OF LAW Sat, Aug 22, 2020, at ,10:28 PM Background of the act When the Indian Penal Code was enacted it also defined and provided punishment for the offence of bribery and corruption amongst public servants. But later on, i.e. during the World War II, it was realized that the existing law in Indian Penal Code was not adequate to meet the exigencies of the time and the then imperative need was felt to introduce special legislation with a view to eradicating the evil of bribery and corruption and thereby, the concept for the enactment of Prevention of Corruption Act came the first time in 1947. But with the passage of time the prevention of Corruption Act 1988 came into force, which consolidates the provisions of : Prevention of Corruption Act, 1947 Criminal Law Amendment Act, 1952 Sections 161 to 165 of IPC. Besides, this it has certain provisions intended to effectively combat corruption among public servants. The 1988 Act consists of 30 sections (Section 31st was repealed) divided into five chapters. The Act was further amended in the year 2018. The salient features of the Act are as follows: The term ‘Public Servant’ is defined as u/s 2(c) of the Act. The definition is broader than what existed in the IPC. A new concept – ‘Public Duty’ is introduced which is defined u/s 2(b) of the Act. Offences relating to corruption in the IPC have been brought in Chapter 3 of the Act, and they have been deleted from the Indian Penal Code. All cases under the Act are to be tried only by Special Judges (u/s-4) and the appointment procedure and power of the special judge is altogether covered under Chapter 2 of the Act. Proceedings of the court have to be held on a day-to-day basis. Penalties prescribed for various offences are enhanced. Criminal Procedure Code (for the purpose of this Act only) to provide for expeditious trial (Section-22 of the Act provides for amended Sections 243,309,317 and397 of Cr.P.C). It has been stipulated that the no court shall stay the proceedings under the Act on the grounds of any error or irregularity in the sanction granted unless in the opinion of the court it has led to the failure of justice. Other existing provisions regarding presumptions, immunity to bribe giver, the investigation by an officer of the rank of Dy.S.P., access to bank records etc have been retained. So, the Corruption Act, inter alia, widened the scope of the definition of a “public servant” enhanced penalties provided for offences in earlier laws. Since the Prevention of Corruption Act 1988 is the main law for dealing with offences of pertaining to corruption in India. Commencement & Extend: The Prevention of Corruption Act, 1988 came into force on the 9th of September 1998. It extends to the whole of India, except the State of Jammu and Kashmir and it also applies to all citizens of India outside India. Section 2 Definitions: The most important definitions are: Section 2(b) -Public duty Section 2(c)Public servant Public Duty: It means a duty that is dining for the benefit of the State, the public or the community at a large. It this context, State would mean: A corporation established by or under a Central, Provincial or State Act. An authority or a body owned controlled or aided by the Government company as defined in Sec. 617 of the Companies Act,1956. Public Servant: It is a unique term in Anti-corruption law, being the deciding factor at the threshold, of one's liability, depending on his being a public servant. The term 'Public Servant' was not defined under the PCA, 1947 and the Act adopted the definition of the term under sec. 21 of the Indian Penal Code. The PCA of 1988 provides a wider definition in the Act itself under clause (c) of sec.2. Power to Appoint Special Judges: The Central and the State Government is empowered to appoint Special Judges by placing a notification in the Official Gazette, to try the following offences: Any offence is punishable under this Act. Any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified under the Act. The qualification for the Special Judge is that he should be or should have been a Session Judge or an Additional Session Judge or Assistant Session Judge under the Code of Criminal Procedure, 1973 Case trial by Special Judges: Every offence mentioned in Section 3(1)shall be tried by the Special Judge for the area within which it was committed. When trying any case, a Special Judge may also try any offence other than what is specified in S. 3, which the accused may be, under Cr.P.C. be charged at the same trial. The Special Judge has to hold the trial of an offence on a day-to-day basis. However, while complying with foretasted, it is to be seen that the Cr.P.C. is not bifurcated. Power and Functions of Special Judges: It is provided under section 5 & 6 of the Act. Offences and Penalties: Chapter 3 The following sections cover the Offences and Penalties under the Act: Section7. Offence relating to public servant being bribed. Section 7A. Taking undue advantage to influence public servant by corrupt or illegal means or by the exercise of personal influence. Section 8. Offence relating to bribing of a public servant. Section 9. Offence relating to bribing a public servant by a commercial organisation. Section 10. Person in charge of a commercial organisation to be guilty of offence. Section 11. Public servant obtaining an undue advantage, without consideration from person concerned in proceeding or business transacted by such public servant. Section 12. Punishment for abetment of offences. Section 13. Criminal misconduct by a public servant. Section 14. Punishment for the habitual offender. Section 15. Punishment for the attempt. Matters to be taken into consideration for fixing fine: Where a sentence of fine is imposed under sec. 13(2) and sec. 14, the court while fixing the amount for the same shall consider the amount of the value of the property which the accused has obtained by committing the offence or where the conviction is for an offence referred to in sec. 13(1)(e), the pecuniary resource or property for which the accused is unable to account satisfactorily. Investigation: Chapter 4 The investigation shall be done by a police officer, not below the rank of: In the case of Delhi, of an Inspector of Police. In metropolitan areas, of an Assistant Commissioner of Police. Elsewhere, of a Deputy Superintendent of Police or an officer of equivalent rank shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a magistrate of first-class, or make any arrest therefor without a warrant. If a police officer no below the rank of an Inspector of Police is authorized by the State Government in this behalf by general or special order, he may investigate such offence without the order of a Metropolitan Magistrate or Magistrate of First class or make arrest therefor without a warrant. Previous Sanction: The previous sanction is required in the cases where an offence is punishable under section- 7, 10, 11, 13 and 15 of the Act. Appeal and Revision: The High Court has given all power of appeal and revision that are provided to it through Cr.P.C. as if the Court of Special Judge were a Court of Session trying cases within the local limits of the High Court. The Prevention of Corruption Act (including the Amendment Act) Prevention of Corruption Act (POCA) – 1988 to 2018 In 1988 POCA was enacted to consolidate all laws relating to offences by public servants. However, POCA prosecuted and criminalised only bribe-taking and not bribe-giving. The erstwhile Section 7, Section 8, Section 9, Section 10 and Section 11 of POCA criminalised various corrupt acts of public servants and middlemen seeking to influence public servants per se while excluding the bribe giver as well as private entities -taking bribes (as per Law Commission of India Report No. 254, February 2015, paras 1.6 to 1.9). Although the application of POCA was limited to public servants, courts have given an expansive interpretation to the expression ‘public servant’. In the Central Bureau of Investigation, Bank Securities & Fraud Cell v. Ramesh Gelli & Ors.( Crl. App. 1077-1081 of 2013 decided on February 23, 2016), the Supreme Court of India held that the chairman and directors of a private bank would also be ‘public servants’ for the purpose of POCA. The POCA Amendment Act has now extended the scope of POCA to prosecute bribe givers, commercial organizations and its officials. However, the POCA Amendment Act has failed to bring within its ambit, corrupt practices among private entities inter se and illegal gratification to foreign officials. As the POCA saw limited success, an amendment was enacted (Amendment Act) and brought into force on 26 July 2018. The Amendment Act attempted to bring the POCA Act in line with the United Nations Convention against Corruption 2005, which was ratified by India in 2011. Key changes made in the Prevention of Corruption (Amendment) Act, 2018: Definition of ‘Undue advantage’ was included under section-2 (d) of the Amendment Act. Specified timeline for completion of trial for corruption cases provided under section-4(5) of the Amendment Act. Provisions for persons liable for offering a bribe to public servants added in section 8 of the Amendment Act. Provisions for corporate liability of CO added under section- 9 of the Amendment Act. Amended the provision of granting sanctions for prosecutions under section-17(a). The Amendment Act extends this protection of requirement of prior approval to investigation prior to prosecution. Further, such protection is extended to former officials as well, for offences done while in office. The third proviso to Section 19(1) provides for a directory (not mandatory) time period of 3 (three) months within which the appropriate government must convey the decision on such sanction. Additionally, the Central Government may prescribe guidelines for grant of sanction for prosecution. Punishment provisions are strengthened under section-7, 12 and 14 of the Amendment Act. Punishment for bribe-taking enhanced, minimum punishment of 3 yrs, extendable up to 7 yrs with fine; from the earlier 6 months, with extension up to 3 yrs. Provision for attachment and forfeiture of property added under section 18 (A) of the Amendment Act. Amendment Act prescribes that the Special Judge shall endeavour to complete the trial within 2 years. This period can be extended by 6 months at a time and up to a maximum of 4 years in aggregate subject to proper reasons for the same being recorded. The wording of the section is a directory in nature and not mandatory, making it less likely that the courts will abide by such timelines.