PREVENTION OF CORRUPTION ACT

By- Riya Puniyani

Introduction-

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 imperative need was felt to introduce a special legislation with a view to eradicate the evil of bribery and corruption and thereby the Prevention of Corruption Act, 1947 was enacted which was later on amended twice; once by the Criminal Law Amendment Act, 1952 and later in 1964 by the Anti-Corruption Laws (Amendment) Act, 1964 based on the recommendations of the Santhanam Committee. To make the anti-corruption laws more effective by widening their coverage and by strengthening the provisions the Prevention of Corruption Bill was introduced in the Parliament.

The Prevention of Corruption Act came into force on the 9th day of September, 1998. It extends to the whole of India, except the State of Jammu and Kashmir and it applies also to all citizens of India outside India.

Corruption-

Corruption is dishonest behaviour by those in positions of power, such as managers or government officials. Corruption can include giving or accepting bribes or inappropriate gifts, double dealing, under-the-table transactions, manipulating elections, diverting funds, laundering money and defrauding investors.

Corruption can occur on different scales. Corruption ranges from small favors between a small number of people (petty corruption), to corruption that affects the government on a large scale (grand corruption), and corruption that is so prevalent that it is part of the everyday structure of society, including corruption as one of the symptoms of organized crime.

Genesis-

The Prevention of Corruption Act, 1988 (henceforth referred to as PCA) came into force on 9th September, 1988. it incorporated the Prevention of Corruption Act, 1947, the Criminal Law Amendment Act, 1952, and sec. 161 to 165-A of the Indian Penal Code with modifications, enlarged the scope of the definition of the expression ‘Public Servant’ and amended the Criminal Law Amendment Ordinanc,k1944. The PCA, 1988l, thereby widened the coverage, strengthened the provisions and made them more effective.

Prevention of corruption act,1988

Public Duty      Public servant

Public  Duty-

It means a duty that is dine for the benefit of the State, the public or the community at a large. It this context, State would mean:

a) A corporation established by or under a Central, Provincial or State Act.

b) 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 unique term in Anti-corruption law, being the deciding factor at the threshold, of one’s liability, depending on his being 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

Salient Aspects-

  1. Under cl (c) of Sec.2 of the PC, the emphasis is on public duty and not on the Authority remunerating.
  • The definition is enlarged so as to include the office-bearers of the registered co-operative societies receiving any financial aid from the Government, or from a Government corporation or company, the employees of universities, public service commissions and banks etc.

The following genres of persons fall within the ambit of ‘public servant’:

  1. Any person who is paid by the government or local authority or remunerated by way of fees or commission for the performance of or is in the service of a corporation established by or under a Central, Provincial or State Act, or an authority or body owned or controlled or aided by the Government company as defined in the Companies Act, 1956.
  • Any Judge or any person authorized by a court of justice to perform any duty, in connection with the administration of justice or any arbitrator to whom any cause or matter has been referred for decision or report by a court of justice or report by a court of justice or by a competent public authority.
  • Any person who holds an office result to which he is empowered to prepare, publish maintain or revise an electoral roll or to conduct an election or part of an election, or is authorized or required to perform any public duty.
  • Any person who is the president, secretary or other office bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central or State Government or any authority or body owned, controlled or aided by Government or Government company as defined in Sec. 617 of the Companies Act, 1956.
  •  Any person who is a chairman, member or employee of any service commission or Board or a member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection on their behalf.
  • Any person who is the Vice-Chancellor or member of any governing body, professor, reader or lecturer of any University and any person whose services have been availed of by a University.
  • An office-bearer or an employee of an educational, scientific, social, cultural or other institution receiving or having received any financial assistance from the Central or State government or local or other public authority.
  • Explanation 1 states that it is immaterial whether the person falling within the periphery of the above clauses is appointed by Government or not.
  • Explanation 2 states that a person who is actually holding the position of the situation of public servant irrespective of the fact that he might not have th3e right to hold that situation shall be deemed to be ‘public servant’.

Offences And Penalties:

The following are the offences under the PCA along with their punishments:-

  • Taking gratification other than legal remuneration in respect of an official act, and if the public servant is found guilty shall be punishable with imprisonment which shall be not less than 6 months but which may extend to 5 years and shall also be liable to fine.
  • Taking gratification in order to influence public servant, by corrupt or illegal means, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.
  •  Taking gratification, for exercise of personal influence with public servant shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.
  • Abetment by public servant of offences defined in Section 8 or 9, shall be punishable with imprisonment for a term which shall be not les than six months but which may extend to five years and shall also be liable to fine.
  • Public servant obtaining valuable thing without consideration from person concerned in proceeding or business transacted by such public servant, shall be punishable with imprisonment for a term which shall be not les than six months but which may extend to five years and shall also be liable to fine.
  • Punishment for abetment of offences defined in Section 7 or 11 shall be punishable with imprisonment for a term which shall be not less that six months but which may extend to five years and shall also be liable to fine.
  • Any public servant, who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to 7 years and shall also be liable to fine.
  • Habitual committing of offence under Section 8, 9 and 12 shall be punishable with imprisonment for a term which shall be not less than two years but which may extend to 7 years and shall also be liable to fine.

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 or te value of the property which the accussed 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 accussed is unable to account satisfactorily.

Investigation-

Investigation shall be done by a police officer not below the rank of:  

  1. Incase of Delhi, of an Inspector of Police.
  2. In metropolitan areas, of an Assistant Commissioner of Police.
  3. 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 Metropolitan Magistrate or a magistrate of first class, or make any arrest therefore 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 sanctions-

Previous sanction is required in following cases:

When an offence is punishable under secs. 7, 10, 11, 13 and 15 of the Act.

In case of a person who is employed in connection with the affiars of the Union or State and is not removable from his ofice save by or with the sanction of the Central or State Government as the case may be. In case of any other person, of authority competent to remove him from his office.

Previous sanction is required, if the court feels that a failure has occured in the administration of justice, to do the following:

reversal or alteration by the Court of Appeal of any findings, or any sentence or order passed by a Special Judge. stay the proceedings on the ground of error, omission or irregularity. revision of any interlocutory order passed in inquiry, trial, appeal or proceedings.

Accused: A Competent Witness-

Any person charged with an offence punishable under this Act, shall be a competent witness for the defense and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial:

Provided that-

  • He shall not be called as a witness except at his own request;
  •  

(b) His Accused: A Competent Witness:

Any person charged with an offence punishable under this Act, shall be a competent witness for the defense and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial:

Provided that-

  1. He shall not be called as a witness except at his own request;
  • His failure to give evidence shall not be made the subject of any comment by the prosecution or give rise to any presumption against himself or any person charged together with him at the same trial;
  •  He shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of any offence other than the offence with which he is charged, or is of bad character, unless-
  • The proof that he has committed or been convicted of such offence is admissible evidence to show that he is guilty of the offence with which he is charged, or
  • He has personally or by his pleader asked any question of any witness for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defense is such as to involve amputations on the character of the prosecutor or of any witness for the prosecution, or
  •  He has given evidence against any other person charged with the same offence.

Conclusion:-

Corruption is a termite that is eating up the pith of our society it not only hampers the individual’s growth but also the collective growth of our Country. Hence, it stands highly imperative to control and then stop this growing menace and in this case the Prevention of Corruption Act,1988 comes to our aid. In fact, the Act has been beautifully drafted, however, a huge power has been vested in the hands of the Central and State Government in form of appointment of Special Judges, providing sanctions etc. Hence the Act would become oblivious if the matter in question is related to Central or State Governments.

The PCA despite of this lacunae is a very powerful Act which needs proper implementation in order to curb corruption from grass root-level.

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