"Behind every great fortune there is a crime"
Mario Puzo in Godfather series.
India has witnessed worst scams relating to Public procurement be it 2g scam or coal scam. According to Transparency International, India ranks 80th out of 180 nations in corruption perception index. India tops the list of bribery rates with 39% in Asia. Unlike much of the developed countries, India does not have a comprehensive law on corruption. In India corruption is majorly governed by India Penal Code, Prevention of Corruption Act and certain provisions relating to corrupt practices in various ancillary laws including subordinate legislation like rules and regulation of central government and state government. This article focusses on the Prevention of corruption act for that matter.
Investigating Agencies For Corruption
Unlike other developed countries where there are Private Detectives and other different agencies to investigate, India have no dedicated agency which enforces the law of corruption. In India the primary investigating agency for corruption is Central bureau of Investigation (CBI) constituted under Delhi Special police Establishment Act, 1946 and Anti Corruption Branch (ACB) which is a State Police organization to deal with corruption which also have power to investigate their own police officials.
Prevention Of Corruption Act, 1988
Prevention Of Corruption Act,1988 came into force on 9th September 1988. It incorporated Prevention Of Corruption Act, 1947, Criminal Law Amendment Act, 1952 and section 161 to 165-A of Indian Penal Code with modifications. Prevention of Corruption Act is the principal act to deal with the corruption and prohibits certain acts of receiving any illegal gratification or bribes and aiding and abetting the commission of corruption. The Act creates an adverse presumption if public servant’s assets are disproportionate to it’s income, regardless of it’s location or jurisdiction. The Act is to combat corruption in government agencies and public sector.
The act defines public servants to be covered under this act. A public servant includes any person who is
1. In the service or pay of the Government, local authority, government corporation,
2.Related to the administration of justice,
3.Empowered to conduct elections,
4.Appointment to perform public duty,
5.An office bearer of Government aided cooperative society,
6.An employee of any service commission, or
7.A member of any university.
The act only deals with bribery of public servants and does not extend to bribery or corruption in private sector.
According to section 7 Public Servants taking gratification other than legal remuneration in respect of an official act, shall be punishable with imprisonment of 3 years which can be extendedto 7 years and shall also be liable to fine.
Section 8 punishes the taking of illegal gratification, in order, by corrupt or illegal means, to influence public servant.
Section 9 punishes the taking of gratification, for exercise of personal influence with public servant.
Punishment for abetment
Whoever being a public servant, in respect of whom either of the offences defined in section 8 or section 9 is committed, abets the offence, whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment of at least 6 months but can be extended up to 5 years AND shall also be liable to fine.
Whoever abets any offence punishable under section 7 or section 11, whether or not that offence is committed in consequence of that abetment shall be punishable with imprisonment of at least 3 years, up to 7 years AND shall also be liable to fine.
Criminal Misconduct by Public Servant (Section 13)
A public servant is said to commit the offence of criminal misconduct if the habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as in mentioned in sector 7.
If he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate,
If he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as public servant or allows any other person to do so,
If he by corrupt or illegal means obtains for himself or for any other person any valuable thing or pecuniary advantage or by abusing his position. shall be punished with imprisonment of at least 4 years which can be extended up to 10 years AND shall also be liable to fine.
Whoever habitually commits an offence punishable under section 8,9,12 shall be punished with imprisonment for at least 5 years up to 10 years AND shall also be liable to fine.
In C.K Jaffer Sharief v. State, (2013)
The court observed that dishonest intentions is the gist of the offence under Section 13(1) (d) is implicit in words used.
Section 17 incorporates persons authorized to investigate, notwithstanding anything provided in CRPC, 1973 if the offence is committed in Delhi- inspector of police, other metro cities- Assistant commissioner of Police (ACP), elsewhere- Dy. Superintendent of Police (DSP), without order of magistrate and without warrant there is provision for arrest as well.
Gratification is not restricted to pecuniary gratification or to anything estimable in money under this but to gratification without or inadequate consideration.
Prevention of Corruption Act Amendment 2018
The recommendations for the amendment was given by 20th Law Commission headed by Justice A.P Shah in it’s 254th report. The deficiencies of the earlier act was addressed in the amendment act. Two of the major Objectives of amending was to prosecute the act of giving bribe as well and to extend the definition of Public Servant and the scope of the act.
Section 7A and 8
Under the earlier act, the private individuals could not be prosecuted under Prevention of Corruption Act. However, by way of amendment , sections 7A and 8 have been introduced against Private Individuals.
Section 9 and 10
Under the earlier act, there were neither any offences defined nor any provisions existed for prosecution of corporate houses. In amendment Act, the term “commercial organization” has been introduced vide section 9.
As per Section 9 (3) (a) “commercial organization” includes, Partnership Firms, Association of Persons and Companies.
Hence, if any person associated with a commercial Organization commits the offence of bribing a public servant, then the said Commercial Organization can be separately prosecuted under section 9of the Amended Act.
Section 13, as it stood before the amendment, was very elaborate. Resultantly, a large number of cases were registered and investigated against the government officials under earlier section 13(1) (d).
Vide this amendment, the scope of the section has been narrowed down and now the offence under new section 13 is said to committed only when the Public Servant misappropriates something that belongs to the government and is entrusted to him or illicitly enriches himself\herself.
Prior to the Amendment, the section 19 was applicable only to the Serving Officials and not to the one who retired from their services. Therefore, to remove this miscarriage of justice, section 19 has been amended thereby extending the prosecution of prior sanction, to retired officials as well.
In my opinion ‘you will love corruption till you got the money and connections’. Corruption is a social evil which is a hindrance to development of our country. In India people are all okay with the corruption till they got the money and connections to support it. The Prevention of Corruption Act despite of this lacunae is a very powerful Act which needs proper implementation in order to curb corruption from grass root-level.