BRIEF
ANALYSES OF PREVENTION OF CORRUPTION ACT, 1988:
1. DEFINITIONS:
Section 2 of the Act lays down the definitions. Clause 2 (c) defines
‘public servant’. In the existing definition the emphasis is on the authority
employing and authority remunerating. In the proposed definition emphasis is on
public duty. The definition is based on the definition of this expression in
the Indian Penal Code.
The most important definitions are that of:
Public
Duty: It means a duty that is done
for the benefit of the State, the public or the community at a large. In 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
In
Jharkhand Mukti Morcha case the Hon’ble Supreme Court has held that public duty is one in which
public/state/community has interest at large and MPs represent the people of
their constituency in the highest law making body[3]. They are also their representatives in
deciding how the public funds are going to be spent and exercising a control
over the executive. To that extent they
perform public duty and
fall within the purview of this Act.
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. The following are the
salient aspects of the new definition:
a.
Under clause (c) of Sec.2 of
the PC, the emphasis is on public duty and not on the Authority remunerating.
b.
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
commission’s and banks etc.
Term
public servant under this Act has a very wide provision of as many as 12
categories of persons, are covered under this definition. All persons in the service or pay of
government, local authority[4], corporation[5], government company[6], a judge[7], legislator[8], receiver[9], arbitrator[10], election officer, member
or chairman of Public Service Commission, Vice Chancellor of University[11], Sarpanch, Gram Sevak
etc. all come under the ambit of this definition. Appointment by government has no bearing on
the position of public servants
and as such they remain public servant
irrespective of the fact whether they have been appointed by government or not.
A retired
employee, an ex-employee ceases to be a public
servant but he still can be prosecuted under the Act if the offence was
committed during his tenure of public
duty[12]. The Supreme Court has held that the crucial
date for the purpose of attracting the provisions of the act is the date of
commission of offence. Theoretically there is no time limit/bar for launching
prosecution under the Act. Even the MPs
and MLAs come under the ambit of public
servant[13].
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:
a. Any offence punishable under this Act.
b. 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. In State v. Surajdeo Singh[14], court observed that Section 3 and onwards of the Act provide for
the procedure for trial of the offences. The purpose of the Act is to provide
speedy trial of the offences mentioned in Section 3 of the Act. 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
Section 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 day-to-day
basis. However, while complying with foretasted, it is to be seen that the
Cr.P.C. is not bifurcated.
3.
POWERS AND FUNCTIONS OF SPECIAL JUDGE:
Special
Judge may take cognizance of the offences without the accused being
commissioned to him for trial. In trying the accused persons, he shall follow
the procedure prescribed by the Cr.P.C. for the trial of warrant cases by
Magistrate. Court of special judge shall be deemed to be the Sessions Court[15].
Special Jude is not subordinate to Session Judge.
He
may with a view to obtain the evidence of any person supposed to have been
directly or indirectly concerned in or privy to an offence, tender pardon to
such person provided that he would make full and true disclosure of the whole
circumstances within his knowledge or in respect to any person related to the
offence[16].
Except
as for Section 2(1), the provisions of Cr.P.C. shall apply to the proceedings
before a Special Judge. Hence, the court of the Special Judge shall be deemed
to be a Court of Session and the person conducting a prosecution before a
Special Judge shall be deemed to be a public prosecutor.
The
provisions of Sections. 326[17] and 475[18] of the
Cr.P.C. shall apply to the proceedings before a Special Judge and for purpose
of the said provisions, a Special Judge shall be deemed to be a magistrate.
A
Special Judge, while trying any offence punishable under the Act, shall
exercise all powers and functions exercised by a District Judge under the
Criminal Law Amendment Ordinance, 1944.
POWER
TO TRY SUMMARILY:
Where
a Special Judge tries any offence specified in Sec. 3(1), alleged to have been
committed by a public servant in relation to the contravention of any special
order referred to in Sec.12-A(1) of the Essential Commodities Act, 1955 or all
orders referred to in sub-section (2)(a) of that section then the special judge
shall try the offence in a summarily way and the provisions of s. 262 to 265
(both inclusive) of the said code shall as far as may be apply to such trial.
Provided that in the case of any conviction in a summary trial under this
section this shall be lawful for the Special Judge to pass a sentence of
imprisonment for a term not exceeding one year. However, when at the
commencement of or in the course of a summary trial it appears to the Special
Judge that the nature of the case is such that a sentence of imprisonment for a
term exceeding one year may have to be passed or it is undesirable to try the
case summarily, the Special judge shall record all order to that effect and thereafter
recall any witnesses who may have been examined and proceed to hear and re-hear
the case in accordance with the procedure prescribed by the said code for the
trial of warrant cases by Magistrates. Moreover, there shall be no appeal by a
convicted person in any case tried summarily under this section in which the
Special Judge passes a sentence of imprisonment not exceeding one month and of
fine not exceeding Rs. 2000[19].
4. OFFENCES
AND PENALTIES:
a.
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[20].
b.
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[21].
c.
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[22].
d.
Abetment by public servant
of offences defined in Section 8 or 9 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.
e.
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 less than six months but which may extend to five years
and shall also be liable to fine.
f.
Punishment for abetment of
offences defined in Section 7 or 11 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[23].
g.
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[24].
h.
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[25].
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 true value of the
property which the accused has obtained by committing the offence[27] 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[28].
6.
INVESTIGATION:
Investigation
shall be done by a police officer not below the rank of:
a] In
case of Delhi, of an Inspector of Police.
b] In
metropolitan areas, of an Assistant Commissioner of Police.
c]
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
therefore without a warrant[29].
If a
police officer not 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 therefore without a warrant[30].
7.
PREVIOUS SANCTION:
This
chapter talks about prior sanction of central government and state government
by the court before it takes cognizance of any offence against the public
servant. It provides for prior sanction for the prosecution in the case of
person employed in the connection with the affairs of the Union, State
Government and other Local authorities.
The
term “taking cognizance” has no connection with entertaining a bail application
while case is still at the stage of Police Investigation. The term cognizance
is used in the Code to indicate the point when a Magistrate or a Judge first
takes judicial notice of an offence[31].
8. ACCUSED: A COMPETENT WITNESS:
Any
person charged with an offence punishable under this Act, shall be a competent
witness for the defence 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[32]:
Provided that-
(a) He
shall not be called as a witness except at his own request;
(b) 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;
(c) 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[33], unless-
(i) 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
(ii) 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 defence is such
as to involve amputations on the character of the prosecutor or of any witness
for the prosecution, or
(iii) He
has given evidence against any other person charged with the same offence.
9. 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[34].
10. EVIDENTIARY APPRECIATION:
General principle of Criminal Law is that person is assumed
to be innocent unless he is found guilty. Burden of proving the guilt is on the
prosecution. The accused has every advantage while the prosecution is held
rigidly to the charge[35].in
order to hold the accused guilt what prosecution needs to prove is that accused
person has received gratification other than legal remuneration. In M. P. Gupta v. State of Rajasthan[36]
court observed that it is plain that if the prosecution proves the acceptance of
the amount by the accused and the amount does not represent legal remuneration
in any form or any kind, the accused must establish that the amount was not
accepted by him as a motive or reward as mentioned in Section 161, IPC.
It is well established now that the burden upon
the accused on proving his case is no higher than that which rest on party in
civil litigation to obtain a decision in his favour. Prosecution has to prove
their case beyond the reasonable doubt.
[1]
Section 2 (b), The Prevention of
Corruption Act, 1988.
[2]
Section 2 (c), The Prevention of
Corruption Act, 1988.
[3] Supra
No.1.
[4] Girja
Prasad (Dead) by LRs. v. State of Madhya Pradesh, AIR 2007 SC
3106.
[5] State of Punjab v. Karnail Singh, decided on 22nd September, 2008.
[7] Anjani Kumar v. State of Bihar & Anr., AIR 2008 SC 7511.
[8] R.S.Nayak v. A.R.Antulay, 1984 (2) SCC 193.
[10] K. Veera Swami v. UOI, AIR 1991 SC 610.
[11] P.V.Narsimha Rao v. State, AIR 1998 SC 293.
[12] Supra 37.
[13] Supra 40.
[14] AIR 1954 Pat. 80 at p. 83
[15] State v. Hans Raj, 1982 Cri LJ, 517 at p. 522.
[16] Sethi H.D.&Capoor,H.L.,Commentries on Prevention of Corruption
Act, 1988 & a Treaties on Anti Corruption Laws Along with Departmental
Enquiries,Law Publioshers India Private Ltd.,4th ed.,(2004).
[17] Section 326 of Cr PC:
Conviction or commitment on evidence partly by another.
[18] Section 475 of Cr PC:
Delivery to Commanding officers of persons liable to be tried by Court-martial.
[19] Chandrashekharya. N., Power
of Special Judges to Order Investigation, Criminal Law Journal, Vol.2,
Aug., (2007).
[20] Tej Bahadur Singh v. State of U.P., AIR 1990 SC 431.
[21] Ashok Sadashiv Astikar v. State of Maharastra, 1989 Cr LJ 433 at
p. 446 (Bom.).
[22] Pritam Singh v. State, AIR 1954 Punj, 228 at p. 230.
[23] R.G.Jacob v. Republic of India ,AIR 1963 SC 550 at
p.553.
[25] Gurbachan Singh v. State, AIR 1970 Delhi 102.
[26] Gupta, K.N., Legality of
Corruption Act, Indian Journal of
Criminology and Criminalities, Vol. 13,
Jan- Jun, (1992), p. 5.
[27] K.Veeraswami v. Union of India, 1996 (3) CRIMES 1992 at
Pp. 102,103.
[28] N.K.Gupta v. State of H.P., 1995 (2) S.L.C. 346 at
Pp. 344, 345 (H.P.).
[29] Surender Nath Swain v. State of Orissa, AIR 2002 SC 1564.
[30] P.R.Venugopal v. G.P.Rajashekher, ILR 2003 Kar. 801.
[32] Sethi&Anand, Prevention
of Corruption Act, 1988,
Allahabad Law House, 7th ed., (1990).
[33]Sethi H.D.&Capoor,H.L.,Commentries
on Prevention of Corruption Act, 1988 & a Treaties on Anti Corruption Laws
Along with Departmental Enquiries, Law Publishers India Private Ltd.,4th
ed.,(2004).
[34] Ramakrishna, P.V., Treaties
on Anti Corruption Laws in India, Asia Publishing House, 2nd
ed., (1983).
[35] Provinchandra
Ramnarain Bhatt v. State of Gujarat, 1968 Cr LJ 150.
[36] 1974 Cr LJ, 509.
