CHAPTER THE PREV ENT CORRUPTION gy, OF » Logg | jptroduction Ni qheterm “corruption” comes from the lati te “oral decay, Wicked behaviour pap eg WOM * COrrUptiO” which corruption generally Tefers to illegiimae ce” “In Sy serngofribes, using force to extort money, embeziin singe ny ang taxes, using position and power for dishonest and vet td. jlandering of money. ce A The concept of corruption, was discussed at length in: awhich it was held corruption as Something against or forbidden by law, ’ andturpitude or exactly opposite o invo} intenti i i ofhw for improper motives, It covers the act ofan officer in accepting a ta bie, Itcovers every class of crime amounting to felony when intentionally "| titted by ministerial Or judicial officer, State of MP. y, Ram Singh,” the Supreme Court held that “The ag) Bee ofcoruption was found to have cnormously increased by the gl 4 Second World War conditions. Corruption, atthe initial stages, H,'Sidered to be Confined to the bureaucracy, which had the Dia 5" deal with a variety of State largesse 1 Mixing °° 2s. Even after the war, the opportunities ee a ¢ amounts of government surplus ca ta the ‘otae Sed of by public servants. As a hosel ition of controls and f tas, Various g00ds necessitated the Tate the disbursement ] Nbigg : ntemes of post-war reconstruction ai rie public servants, Bing ums fmoney which lay in the contro! o: : to the glittering Retjet Wide discretion, with the result oflusingthamt ) Pog ee Property” © Corruph on 05 a * Ain'nc” AbD, 69, p. 20-77, 87. s a: 000 §¢.g70 (873). disease - [6.1]Dat Nab AS || ARTES 6.2 Socio The Supreme Court further held that “corruption ine isa disease like cancer, which ifnot detected in time, is surg the polity of the country leading to disastrous consequen, ‘omay lague which is not only contagious but i eS. Ibis teal asa plague ; ly contagi tifnot Controlled, aire in jungle. Its virus is compared with HIV leading art incurable. Ithas also been termed as royal thievery. The a 8, system expose to such a dreaded communicable disease islikely ig, - under its own weight. “Corruption is opposed to democ. i order, being not only, anti people but aimed and targeted agains i affects the economy and destroys the cultural heritage. Unless nipped the bud at the earliest, it is likely to cause turbulence - shaking the socig economic-political system in an otherwise healthy, wealthy, effective vibrating society.”* [mPACT ON Economy ' InStatev. Bangarappa,’ the Supreme Court observed as follows: “Corruption causes considerable damage to the economy of the nation. The roots of corruption are so deep that it is an uphill task to eradicate them. It is only possible if and only if each citizen in our country follows the philosophy of contentment. To quench the thirst of greed and lust one must be drenched in shower of honesty and the foundation of sublime lover should ones the magic drops on the eyes for the reality of the life. Unttess one tries to find a golden key to open the gates of wisdom, the heavenly life remains as a myth and we ate all making the futile effort to attain divinity in our life. The oe man should have crystal clear and transparent personal: Caesar’s wife must be above suspicion”. heblie Senants ai tht al in i v. Union of India,’ Justice Nanavathi op “Econom. G : 4 toll Corruption corrodes morals and corruption by public servantsno on leads to corrosion of the moral fabric of the society but also nao igh national economy and national interest, as the persons OCCUPYE™. ao ion can and imag? Bat, Postsin the Government by misusing their power to corrupt! damage to the national Economy, national oft ‘country, 3. Id., at Pp. 873. 4. AIR 2001 SC 222 (223). 5. 1999Cr.L.J. 2859,1988 63 Corruption Act, a t “ «+o from lowest National level to global level. pis? pularised as “Scams” and “Kickbacks”, if itis joel “ crores of rupees or more. This phenomena is a fetraw into millionaires overnight or enriching politicians ereresin a magical WAY. an has assumed the character ofa social menace spreading wide. Asasocial problem corruption has assumed alarming ops cousin misery and gloom to the generality of the people. ae ghakes the faith of ‘anaverage citizen in his country’s institutions, politicians and civil servants. weaning and Definition of Corruption i hesimplest definition of corruption is, any act or omission by a public nt for securing pecuniary or other material advantage directly or © | jcly for himself, his family or friends, is corruption. Bouvier, inhis javDictionary, defines corruption as “An act done with an intent to give t ‘J oneadvantage inconsistent with official duty and the rights of others. It b J cudes bribery, but is more comprehensive, because an act may be d comuptly done though the advantage to be derived from it be not offered | World Bank defines it as ‘the use of public office for private profit” ts gives a universally accepted definition. Black law dictionary defines it as the “act ofan official or. fiduciary ') person who unlawfully and wrongfully uses his station or character toprocure some benefit for himself or for another person, contrary 'o duty and the rights of others. “ | Simple dictionary meaning of corruption is “dishonest and illegal # behavior by people in positions of authority or power & | Santhanam committee has observed thatitis difficult to define comuption f Precisely and that, “‘the problem of ‘corruption is complex having roots 6. Pulluru Satyanarayana, “Corruption in Politics”, paper presented at National Seminar on “Law and Corruption in India, sponsored by U.G.C. held on .21st & 22nd March, 1998, organised by University College of Law, Kakatiya University, Warangal, A.P., India. 7. See The Randam House Dictionary of the English Language, The inbridged Edition (1 964), 3rd Edn., Vol. |. p. 688. « odand ramifications in society as awhole... it exercise of power and influence attacheg to ae special position one occupies in public life» *~ According to section 7 of the Prevention of corruption is an act cf “acceptance or demand oft for doing an official act” by public servant, 3. Need of the Prevention of Corruption Act Eradication of corruption from public Offices is : One important tasks before every government. From time Government of India has been taking legal steps to combat corruption. 7 The Indian Penal Code contained various provisions rel prevention of corruption by public servants in the chapter titled fg By or relating to Public Servants” in Chapter IX. Apart provisions, various other provisions relating to Crimin: Dishonest misappropriation of property and other similar s provisions were utilised to punish the offenders. The first specific the subject of corruption by public servant was enacted inthe e which was supplemented by the Prevention of Corruption Act, 19 The Prevention of Corruption Act, 1947, the Penal Code, sections 161-165A and other provisions were found insufficient orevento control the grave evil of bribery and corruption public service of our country. Thus, government appointed aco review the problem of corruption and to make suggestions inthis 4. Santhanam Committee Report on Corruption __TheGovernment of India appointed a committee with $3 its Chairman to review the problem of comuption and to ma on various matters connected therewith. One of the termsof the committee was ‘To suggest changes in the law which speedy trial of cases of bribery, corruption and erimi make the law other-wise more effective”.® 8. Report of the Committee on Prevention of Corruption Home, Affairs, Government of India, 1964, quoted in’ Law Commission Report, 1966, p. 1.fe sttee in its report opined: y ion of Corruption Act, 1988 - & n 950 ition Act, 1947, the proce of CO © Code, 1898, Criminal Law ( : ecrne special rules of evidence relating to sueh eases in the: evention of Corruption “Act: “The working of the rel o rovisions of these enactments in prosecutions in Courts and’ si at the stage of investigation have disclosed that certain e changes in the law are required in order to ensure speci aa = and more effective rules”?” rege 5. Recommendations of the Santhanam Committee — The committee had submitted its final-report in March 1964. It recommended. amendment of certain service’ enactm Inpursuance ofits interim report a central vigilance commission had been setup in 1963, with. Mr.N. Sreenivasa Rao (aretired Chief Justice of the : Mysore High Court) as the first vigilance commissioner? Severalamending Acts with an accent on strengthening the legal chinery tax evasion, food adulteration, foreign exchange The amending Acts increased the powers ofthe magistrates, by providing summary trialsand: disa bt of appeal in certain cases, by creating presumptions against accused under _ certain circumstances and by making punishments to have a greater — deterrent effect. In the process the. Anti-Corruption Act, 1964 [amending the Indian Penal Code, 1860, the Criminal re Code, 1898, the Prevention of Corruption Act, 1947, and the Criminal — Law (Amendment) Act, 1952] were passed by the Parliament" Itbrought : Indian Penal Codeand - to light several omissions and loopholes in th suggested their removal. The Committee wanted inclusioninthedefimition iit ecltalaa ) 9. 1d. p-53, para 72 & 73 as quoted in 29th Law Commission Report, 1966, p. 1. aa gle ‘ 40. Supra, n. 31 at pp. 31 & 34. i ; 44. Santhanam Committee Report, pp. 53-54 & 8-11 quoted in Mahesh Chandra, Socio-Economic Crimes (1st Edn. 1979); PP:eS Ke Socio-Economic Offences of the term “public servant”, the president, secretary and all members of the managing committee of a registered co-operative society. It also suggested amendment ofa section of the Prevention of Corruption Act, 1947 which debarred police officers below the rank of Assistant Commissioner of Police, Superintendent of Police or Deputy Superintendent of Police from investigating offences which fall within the purview of this Act. Persons charged with bribery have been able to stall proceeding by the Courts under Article 32 and 226. Hence Departmental proceedings, involving charges of bribery and corruption, should be specifically put ina different category and the powers of the Supreme Cour and High Courts under Article 32 and 226 respectively shouldbe limited by an amendment of the Constitution. The Government rejected the suggestion. Thereafter, based on the recommendations of Santhanam Commities Anti-corruption Laws (Amendment) Act, 1964 was made which brought changesin the Prevention of Corruption Act, 1947, but inspite of above amendment, the 1947 Act was found to be inadequate to deal with the | offence of corruption effectively. Therefore, they make the anti-corruption laws more effective. Prevention of Corruption Bill was introduced inthe Parliament, which having been passed by the Houses of Patliamentreceival the assent of the President on 9th September, 1988 and it came into fore on 9th September, 1988. 6. Statement of Objects and Reasons of Prevention Corruption Bill, 1988 The statements of objects and reasons attached to the bill ofP reve of Corruption Bill, 1988 expressly mentioned that the object ofthe to amend the existing anti-corruption laws with a view to ' more effective by extending the scope and ambit of the definition if servant” and to bring to “within its sweep each and every PEISON). ay an office by virtue of which he was required to perform any bli of (1) The Billisintended to make the existing anti-corruption MY gs effective by widening their coverage and by strengthening theP™ i aa ie Prevention of Comuption Act, 1947, was amen ased on the Tecommendations of the Santhanam Committee e°""UPtion Act, 1988 St servants and q.5 Peet XX Of the Indian Penal Code to deal with public arealso Provisions Who abet oe ema) misconduct. There enable attachment Giie Sina Law Amendment Ordinance, 1944 to ineluding fom transfere e°tten Wealth obtained through corrupt means, these Provisions with». o£ Such Wealth, The Bill seeks to incorporate all effective in combatin codifications So as to make the provisions more : 0. i (3) The Bin, inter alj sees ee eas ofthe expression « i ages wid eee lening the scope of the definition tvant”, i i tions 161 to 165A of the Indi > 1NCorporation of offences under sec i forthese offences an Penal Code, enhancement of} penalties provided and inco; ‘ Be | tial court upholai e the Sango ofa provision that the order of the é 1 ‘ion for prosecution would be final if Bisnot dy; cen challenged and the trial has commenced. In order ings, i Provisions for day to day trial of cases and Tegard to grant of ith the necessary saving provisions. “Object of the Prevention of Corruption Act, 1988 ___The statements of ob; jects and reasons in the. Anti-Corruption 1988, Mentions that the object of the Act is to consolidate and amend the i anti-corruption laws with a view to making them more effective. It fhe. vOPe and ambit of the definition of “public servant” and bring Mikin its SWeep each and every person who held an office by virtue of . __» Was required to perform any public duty and enhances Penalties PVided for offences in earlier laws. The underlying idea was to eradicate (t yu ofcomuption. [L.K. Advani. Central Bureau of Investigation, NC LT 9559 (elhi HC)] ; egy’: the Prevention of Corruption Act, 1988 was enacted with yet to prevent the evil practice of corruption more effectively. - “*rvants alone fall within the ambit of Prevention of Pon Act, 1988,6.8 8. General Scheme Of the Act» The Act Contains 31 sectig iG Ze 9. Definition of Public sou Section 2(c) of the Prevention © Cormup! ti servant”: It covers 12 categories ofpersons Deeeea eee eee ee ee amma peer ae - Offences and Penalties are dealt under chapter third, . Investigation of offences is dealt under the Chapter fourot . Chapter five contains some very relevant provisions ns divided into five hipale : Hone chapter contains definitions which only have ls who is a “public Servant” and “public ne Chapter two deal ae Is with i vee (section 3 - section a appointment of special judges and * Section7- public servant accepting illegal gratification, * Section 11 - public servant obtaining valuable thing) acceptance. - + Section 13 - criminal misconduct by public servant. Section 8 and section 9 apply to “any person” whoi a public servant by corrupt or personal means. Section 10 deals with abetment of offences under section and 9 by public servait; section 15 punishes for attempt of offences under this chapter. : Section 12 punishes bribe givers. under section 17 and section 18. ; ous sanction of appropriate government for pro (eet 19); section 20 creates legal presumption agaiast servant where itis presumed thathe es for the purpose as stipulated ae a once it is proved that some kind eee po! accepted; section 21 allows ace ae me witness and lastly section 24 giv i os statements ‘nade by him during any processing © [section 2(¢)]" ruption Act, 1988 def ive of the ——— sn of Corruption’The paw ee PB "eve 2 they hay, — &f Corruption Act, 1988 6.9 tes Publi. sere Pointed by Government or not they are under purview 3 CS the ‘ant. Further, the explanation attached to the definition ofa Publi, Position that any person who is actually holding the position Asany lea ie i ant ‘Shall fall under the ambit of Public servant even if there The 1D ae his appointmentto that position. @ An 8ories of public Servants are as follow: ® Person in the service g f the Go: bytheGow aie T pay o} ¢ Government or remunerated any publin ie by fees or commission for the Performance of it s a Person a2 the service or Pay ofa local authority; S eo © Service or pay ofa corporation established by byvirtue of which he is empowered Prepare, publish, maintain or revise an electoral roll or to duct an election or part ofan election; pe ‘who holds an office by virtue of whi u to perform any public duty; son who is the President, Secretary or other office bearer fed CO-Operative society engaged in agriculture, industry, Ing, receiving or having received any financial aid Government or a State Governmentor from any ch he is authorised6.10 So cio-Economic Offences Corporation established by or under a Central, Provincial or Act, or any authority or body owned or controlled or aided by the Government ora Government company as defined in: Section 617 of the Companies Act, 1956; &) Any person whoisa chairman, member or employee of any Service Commission or Board, by whatever name called, ora member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selectionon behalf of such Commission or Board; (xi) Any person whois a Vice-Chancellor or member of any governing body, professor, reader, lecturer or any other teacher oremployee, by whatever designation called, of any University and any person whose services have been availed of by a University or any other public authority in connection with holding or conducting examinations; (xii) Any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority. 10. Scope of Section 2(c) Though the Prevention of Corruption Act, 1988 has defined the word public servant in the widest possible manner, yet, controversies have arise with regard to various offices such as Member of Parliament, Membersof Legislative Assembly, and Ministers etc. the judiciary has attempted'0 clarify the position in various cases. In Habibulla Khan vy, State of Orissh AIR 1955 SC 1123 it was held that Member of Legislative Assembly , may fall under the definition of public servant under clause (viii) a3 holds an office and performs public duty as defined in section 20) PCA. But, the Governor of the State has no power under section 19 grant sanction for prosecution because he is not competent to him. To prosecute MLA and even after he cease to be Minister, the’ sanction under section 19 is not necessary. In P.V. Narasimha Rao y. State, (1998) Cri LJ 2930, SUF Court held that “a member of parliament” holds an office and byvon of Corruption Act, 1988 6.11 peis required or authorized to perform duties, and such offi0e of public duties. Thus MP is a public servant under this af? inna _arty nM. Karunanidhi v. Union of India, AIR 1979 SC 398, sil Court held that, “a Minister, Prime Minister and Chief s pclusive, is decidedly a public servant in terms of clause (12) of F 1 of IPC, which corresponds to clause (i) of clause {(c) of section. 9BAct. It further held that a minister is appointed and dismissed by and that he gets the salary for the public works done by him or lic duty performed by him, where the said salary is paid from the eat funds. This brings him within the definition of public servant jon 2(c)(1). The Supreme Court in Manish Trivedi v. State of Ra jasthan, AIR SC 648, observed that the Prevention of Corruption (PC) Act, sees widening of the scope of the definition of the expression plicservant and it was brought in force to purify public administration. Mhelegislature has used a comprehensive definition of public servant iidieve the purpose of punishing and curbing corruption among public iim... bearing in mind this principle, when we consider the case ofa ipal councilor, we have no doubt that he is a public servant within meaning, sub-section (viii) of section 2(c) of the present (PC) Act makes any person, who holds an office by virtue of which he is Orrequired to perform any public duty, to be a public servant.” patsy above interpretation, “Municipal councilors” come under ig. > ©! PUblic servants and they can be prosecuted for their corrupt ‘tis ‘nder the Prevention of Corruption Act. ! hay tent to note here that, before 1988 Act, the definition ; .olic tive epmowed from Indian Penal Code, section 21 which was not asa “ugh specially because where the Prevention of Corruption we the legislation, Penal Code is wider and generally applicable oa Bible of PCA was to bring into its ambit every person who wale , office and performs a public duty, the same was not &, Seo borrowing and interpreting section 21 of IPC. Rt in ™above case further observed that relevant provision for mnof the question whether the accused in any caseisa public6.12 Servant or not, Section 21, IPC is of no relevance and of Corruption Act, 1988. oe Be In the contemporary scenario there is hardly any office whose cannot, in the last resort, be tracedto having a bearing on public i or the interest of the community at large, i Be Thus scope of the definition was further extended by Si to bring private players who effect public interest within the Act. In CBI, Baak Securities and Fraud Cell v. Ramesh G was held that even “officers of Private Bank” are public sei observed, that “public duty” means a duty in the discharge o State, the public or the community at large has an interest, and to explanation, in this clause “State” includes a corporatior or under a Central, Provincial or State Act, or an auth owned or controlled or aided by the Government or a company. The above provision was conjointly read with Banking and Regulation Act, 1949 which deemed chairman, managing director as well as other officials of banking “public servant” for the purpose of section 161-165 of PC.l that the pith and substance of section 46 cannot be defeated) i the same were now repealed, as the said offences intheirs embodied in PCA, 1988. i + Similarly in matter of Reliance Telecommunication Union of India, the telecom dispute settlement a held that license is given to the private companies with aPU 42. Criminal Appeal Nos. 1077-1081 of 2013.‘on of Corruption Act, 1988 6.13 ‘cation services to public at large, thus it could be said that gov mdertaken to perform a public duty. Therefore officers of pi companies are public servant within the section 2(c). E se courts have brought a large number of officials within the jt Act bY interpreting the term public servant. Thus a public pr State of Maharashtra v. Suresh Gopala Rao, 2008 Cri 9 792 (Bom), Chairman of Co-operative Society (State of shtra v. Laljit Rajesh Shah, AIR 2000 SC 937), elected pent atives, employees of nationalized banks, railway employees, wii employees etc., are considered public servant under the Act. fence Committed by “Public Servant” and “Bribe y’and their Penalties [Sections 7 to 16] tions 7 to 16 of the Prevention of Corruption Act, 1988 define offences and also provides punishment for that. j tence Relating to Public Servant being Bribed tion 7] Skion 7 of the Act in short provides that any public servant who Sindue advantage from any person shall be punished. It provides iblic servant who:— i Sbains or accepts or attempts to obtain from any person, an undue aivantage, to perform public duty improperly or dishonestly cause carance to perform such duty either by himself or by another - Public servant; or ag or accepts or attempts to obtain, an undue advantage “any person as a reward for the improper OF bea the pve? Of aPublic duty or forbearing to perform such duty W oec himself or another public servant; oF : 5 eS or induces another public servant to perform improperly » Naishonesth SS at forbear performance of such dy. 2estly a public duty or to for! An ean “yy, ticipation of or in eons pei a lop ftom any person shall be punt with fine aij Which shall be between three t seven yearsand6.14 : oan re Explanation J of the section further provides that, for a section, the obtaining, accepting, or attempting to ob antage shall itself constitutes an offence even if the per public duty by public servant, is not or has not been improper, i Explanation 2 further clarifies that that expressions “o ‘accepts” or “attempts to obtain” shall cover cases where a publio, “obtains” or “accepts” or “attempts to obtain”, any undue ad himself or for another person by abusing his position or by using} influence over another public servant; or by any other corrupt or means. Further, it is immaterial whether public servant “ob “accepts” or “attempts to obtain” the advantage directly or througha party. “Undue advantage” has been defined under section 2d) 0 according to which, “undue advantage” means any gratification y other than legal remuneration. . F The word “gratification” is not defined in the Act but extended by the explanation which says that the word is not any pecuniary gratification, orto gratification estimable ins word gratification is thus used inits larger sense as connoti which affords gratification or satisfaction or pleasure to theta or the mind. The gratification can be in Cash, Kind or of Po word “gratification” is used to denote acceptance of somet pleasure or satisfaction of the recipient. Ifthe money, paidisn satisfaction or pleasure of ‘the recipient itisnot gratificationint® is used in the section. [Mohmoodkhan Mahboobkhan? of Maharashtra, (1997) 10SCC 600] 43. Taking undue Advantage to Influence a Public Section TA] : : of the Act provides that whoever Section 7 A F im to induce 4 public servant to perform imy dee imprisonment fora term which shall i Punts ars and with fineals®. >F a of Corum’ oe eating to Bribing 4 Public Servant [Section 8] fen gies rovides as follows 2 who gives/promises any undue advantage to another apublic servant for improper shall be punishable with imprisonment ofupto ply where the person has been compelled ported to law enforcement giving such undue undue advantage and whether the undue advantage tt whether such to perform or has potrelevan tly oF the same person who is directly *". hasbeen received by performed the concerned public duty. Itis = dso on. However, 10 Arn. i : rh. sig emisation is an offence pro a Hi"cig can be held liable “if 2 person eae any undue ec cmsceor gives OF promises & Bijan business = organisation gives oF regtto oban eS- 6.16 me orany advantage for that commercial organizations, all types of entities (including domestic companies, partnershi, . . .. 2 Se . e ips) doing business in India, but does not organizations. Commercial: organizations operating in be vicariously liable for any bribes provided to public associated with such organizations. In order to cast i intermediaries who provide bribes on behalfof commercial, the 2018 Amendment considers anyone “who performs, on behalf of the commercial organisation” to be a perso, with such organization. Consequently, commercial organi _ held liable for the actions of their employees, agent and professional advisers. Further, a parent company (in parent company) can be held liable under the PCA forthe; Indian subsidiary. — Such organisations shall be punishable witha fine charge, including director, manager, secretary orotherofi of the offence. Thus, it poses direct liability for commercial: in India and bas a far-reaching impact on the officers gultyo punishable with imprisonment for aterm not less than extendable to seven years in addition toa fine. Commercial organizations can avoid liability fora bab th them by demonstrating thatthe bab person associated wit i thet to the public servant despite the organization puttingnP® d to prevent” it. i procedures designe _ The Act has not defined adequate Central Government to formulate and prescribe gui persons associated with the CO from bribing any PY Until the Central Government notifies ide rocedures, the CO operating in India may dance/notifications issued by international ee countries that have more op chasU-S., UK. Some such guidine “ su ae . edas adequate ures’ 101jon of Corruption Act, 3 ss ere ene eae 6.17 Foreign Comupt Practices Act, 1977 (‘FCPA’): Resource Guide (a) issued by Department of Justice (DoJ) and Securities Exchange Commission (SEC) in the U.S. 2 six Principles of Adequate Procedures defin : 0 Sey Act, 2010 fined under the U.K. dation for Furth i i 0 OECD Recommenc ‘ er Combating Brib © Foreign Public Offcialsin International Business seats? é) OECD Good Practice Guidance on internal Controls, Ethics and Compliance © International Organisation for Standardisation (ISO) 37001 | section 9(4) states that notwithstanding anything contained in the Code [Criminal Procedure, 1973 the offence under sections 7A, 8 and 9 shall jecognisable. : ; 46. Person in Charge of Commercial Organisation to be Guilty of Offence [Section 10] Section 10 of the Act provide that where an offence under section 9 is committed by a commercial organisation, and such offence is proved in thecourt to have been committed with the consent of any director, Mauger, secretary or other officer, then such director, manager, secretary trother officer shall be guilty of the offence and shall be punished with Mpisonment for a term between 3 years to 7 years and shall also be eto fine. Theexplanation attached to this section provides that, forthe purposes tits section, “director” in relation to a firm means a partnerin the firm. Public Servant Obtaining undue Advantage without , Sideration [Section 11] : ae jon 11 of the Act provides that if a public servant °° ET advantage without consideration from any person Cone ae “dings or business transacted or having #nY is with a a, functions of such public servant part: and shall also be ment for a term between six months 10 Sys me6.18 In other words, section 11, prohibits a public servant from unconscionable advantage out ofa bargain with person with comes in contact officially. It does not prohibit a sale ora puny Public servant, at a fair price, to or froma Person with whom th servant may be transacting business on behalfof; government inhis capacity. Example, Aisa public servant working in the Public Works and in-charge of approving tender for road construction, Aq from B without paying him any money. You know thathiscom D apply to your department for approval of a contract to build a hi InRS, Nayakv. A.R Antulay, 1986 AIR 2045 the Supreme observed that, sections 11 of the Act have been enacted by the le witha view to eradicating corruption in public life. The court must{ th interpret section 11 according to its plain language without in any m 2 being anxious or astute to narrow down its interpretation. Section be construed in amanner which would advance the remedy and the mischief whichis intended tobecurbed. ~ . 18. Punishment for Abetment of Offences [Section 12] Section 12 of the Act provides that whoever abets any punishable under this Act, whether or not that offence is. consequence of that abetment, shall be punishable with impri aterm between 3 years to 7 years‘and shall also be liable to t 19. Criminal Misconduct by a Public Servant [Se (1) A public servant is said to commit the offence of misconduct,— i (a) ifhe dishonestly or fraudulently misappropriates of converts for his own use any property entrusted tot property under his control as a public servant or allows? person so to do; or 7 ; (b) if he intentionally enriches himself illicitly during the: office. : Beye Explanation 1 —A person shall be presum: i ariched himself: illicitly if he or any person on his bet if isi ¢of Corruption Act, 1938 : i 6.19 g the period ofhis Office, | ® urces OT Property disproportio to his inne ch the public servant cannot ae z - sis of Section 13 n13(1) ofthe Act provides thata sof criminal misconduct:— dishonestly or fraudulently misappropriates himself or allows (person to misappropriate any property entrusted to him in his ial capacity. ‘ifhe intentionally enriches himselfillicitly during the period ofhis office. ing of ‘Intentionally Enriches himself Illicitly’ on I attached to section 13(1) provides that a person shall to have intentionally enriched himself illicitly if he or any is behalf, is in possession of or has, at any time during the fice, been in possession of pecuniary resources or property le to his known sources of income which the public servant public Servant is said to commit ched to section 13(2) provides thatthe expression “known ? a charge under ction 130)(), the posse ing ingredi the prosecution ico: ee end extent of the in his possession, G)it were his known sources ofincome Le Sa ust prove quite objectively thatthe 15S - eof the accused were disProPOrso | Se c . 2 are I esi Ee ection 130) is6.20 Socio-Economic Off complete; unless the accused is able to account for such . Pigg Snditis only thereafter the burden shifts to the accuses his innocence; M. Krishna Reddy v. State, Dep of Police, Hyderabad, AIR 1993 SC 313. Thus, possession of assets becomes an offence only when they Servant fails to satisfactorily account for the same. The Public servant, to prove that assets have been acquired through legal sources of ing Section 13(2) provides that a public servant who commits cr; min; misconduct shall be punishable with imprisonment for aterm which shay be between four years to ten years and shall also be liable to fine, 22. Criminal Breach of Trust under Secti uty Superintend. ion 13(I)(a) Prevention of Corruption Act, 1988 and Section 409 of Indian Penal Code, 1960 ' 13@@) provides that ifa public servant dishonestly or fraudul misappropriates himsélf or allows an: 'Y person to misappropriate Property entrusted to him in his official capacity, he is guilty ofctin misconduct. The offence mentione i mentioned in section 409 of Indian r section 409 of the Indian Penal Code, a public servantis guilty only if commits the criminal breach of trust himself, under clause 13(1)a)o Prevention of Corruption Act, he is guilty, whether he hims misappropriates or allows any oth ‘er person to misappropriate entrusted to him in his official Capacity. Another difference be ; Code and under section 13(1)(a) of the ie ae in which a public servant is OITU)oo of Corruption Act, 1988 ruptionAct only, the . ree , ae 3 - the public scrvant Soul aan , iP radian penal Code. The Supreme Court again 4 Ye veerashwar Rao) has held that there ce 0} es on viction under section 409 of Indian Pou objection: t e Ween acquitted of an offence under se eee t Pion of comruptionAch 1947 [analogous to section iaNaote Ke 1988]- v yea ding Case $ Kanwarjit Singh Kakkar v. State of Punjab (2011) 6 SCR 895 “ lants eppreat Singh Kakkarand Dr Rajinder officers working with the State Government led against the appellants alleging that both te practice in the evening and charged Rs. cription fee. According to complainant, as the government doctors are not supposed , pdatpe any fee from the patients for checking them as the same was | tothe government instructions. In view of this allegation, araid 4 enducted at the premises of both these doctors and they were | tiprivate practice and receiving Rs. 100as consultation charges from | templzinant. On the basis of this, the FIR wasregistered against the -lants under section 13(1)(d) read with section 13(2) of the PCAct tds section 168 of Indian Penal Code. : ice light of the above facts, the appellants approached the High qibquash the FIR under section 482 of CrP.C. COMER. ae hye, stmade out from the allegations in the FiRevenasit stands. It : The appel | pies) were medical spi. Acomplaint was fi [pjoctors Were doing priva' wacash per patient as pres' , gegovernment instructions, tbnitted by the appellant that neither any medical bee od pressure © ants. It was Norany apparatus or blo a recovered from the residence of the appear varjit t the complainant had come to the house O°" 1 ent. wit which was under renovation and reque ed for rea «st scribbled downthe { Moy,. itatian grounds, 4 i iy the appellant justson pellant-- : sie Pt which does not even bear the sign ot ei no law also contended on behalfofapPe rl eaimnne22 : 6 Socio-. Economie : prohibiting government doctor from doi: / and the appellants could be alleged to have naan nat once only ifthey have deviated from the rules laid dowmby heat Prgn, | in this regard. In the alternative, it was contended ‘oe F deviation from these rules prohibiting private practaeeaal doctors contrary to the government instructions, it could: OY Boveramey of departmental proceeding and the punishment under the Punt titi Services (Punishment and Appeal) Rules and not under ae Chit under the Prevention of Corruption Act. However, the High Courtden to quash the proceedings against the appellants. The High Course att , the rule 15 of the Punjab Civil Medical (State Service Clas yal 1972. As per rule 15 of the said Rules, the Government may by mall f special order permit any member of the Service to engage in privates ZF onsuch terms and conditions and subject to such restrictions and limit as may be specified in the order provided that such practice does notin & any way interfere with the discharge ofhis or their official duties, The a Special Leave petition was filed before Supreme Court under Article 5 136 of the Constitution. : + In the Supreme, Court, it was argued on behalf of the appellant thal 5 section 7 of the Prevention of Corruption Act explains ‘corruption’ as 4g acceptance or ‘demand’ illegal gratification for doing any official act. Te |, demand/receipt of ‘fee’ while doing private practice is notan ilk i gratification for official duties. Further, even section 13()(@) of ‘ 4 Prevention of Corruption Act does not apply since the main ingredients this section are: "| (a) The accused must bea public servant at the time of the offen 1 (b) He must have used corrupt or illegal means and obtain ii or for any other person any valuable or pecuniary advantage § (c) He must, have abused his position as a public servantand ” af obtained for himself and for any other person any valuable nt? or pecuniary advantage; or 4 (d) While holding such office he must have obtained for any person any valuable thing or pecuniary advantage W! motive. ‘ is Further, by way of rejoinder, the appellants contended that? ‘departmental rules’ which bar private practice by a g0n of Corruption Act, 1 988 prevertio y action if any, is liable to be initiated/taken under chin the present case arethe Punjab Ci ) Rules. Rule digs the Punjab Civil Medical (Size , 1972 states that a government ‘ ee ission from the government. doctor may engage er the counsel for the appellants also took assistan fou (9 Government Vigilance Department, which vide Monae _ a} P= 54/20094 dated 23.12.2004(T) instructed the Chief Directo | 6 nce Bureau, Punjab, Chandigarh on 19.1.2005 that the eases pending, es the government teachers for holding tuition classes should be “ran as these cases do not come within the purview of the Prevention corruption. Act as fees demanded/accepted by a teacher in view of d hing private tuition classes can neither be termed as corruptionnor — mmitbe said to be a demand for remuneration for some official act. It was d sibmitted by the appellant that this principle needs to be applied onal pofessionals on the basis of principle of equity. Onthe other hand, it was argued by the respondents that the provisions i {Prevention of Corruption Act clearly apply as the government doctors inthe State of Punjab have been specifically prohibited to carry private pactice under the departmental rules and as such the act of the appellants im were illegal. *| Issue: Whether a government doctor alleged to be doing practice “| Mle booked within the ambit and purview of the Prevention of Corruption #) ‘torunder Indian Penal Code, or the same would amount to misconduct ‘ oe Punjab Civil Medical (State Service Class I) Rules, 1972 under te Decision: (i) The Supreme Court observed that on critical analysis of - ®umentsadvanced, in the light of the definition of ‘corruption’ defined the Prevention of Corruption Act in its Preamble and under section lege tit clearly emerges that ‘corruption’ is acceptance or demand ;_ ratification for doing ar official act. We findno difficulty im ae © submission and endorsing the view that the demand/receipt Pica, © doing private practice by iself cannot be held to be anillegal io 38 the same obvious ly is the amount charged towards Temuneration, It would be preposterous in our view to hold charges fee for extending medical help and is doing that bySocio. Econom, Ic s professional duty, the same would amount tot Mf, ej 7 would be even against the plain common nowever, for the sake of assumption, it we, swhile doing private practice as Government daeiteet or ind inany manner as for instance took moneyty > \ Ea a THM oly of criminal nature like prescribing moon ti om sof extracting money by way of professional fee Surge ances, the same obviously would be a daa © tg proper medical treatmentto the complaina n of the doctoras it was held in the circumstam Tequisites for proving demand and accepli blished and the appellant therein was el | However, the prosecution version i Fitten complaint was made 10 SP, iu Hadi, a Safai Mazdoot afRf tion of Corruption Act, 1988 wm vaincant Raju Hadi that in case he 625 at ne should pay the amount to his vy one 2Ot availabe i ft b egthe amount to him. Since the con boy Nag et the pas ake the payment of bribe iplainant Raj in who 1508 omplaint to the SP, CBL pant? Hadi was ? joaged aco sf above > CBI, Dhani fort and ward on the basis of the above said complaint the takingnecessary gor conviction was upheld by the Apex Gaited Ws died pitt? the said case that there is no case of the ac, twas held by the 4 received by him as the amount wiih that the said Pre or collect from the complainant. It was, hove eee 92 eamount is found to have been passed to thagniee held that - ;,on public servant to establish thatit was not by aii the pin a(see section 20 of the PCA), This Court held pi = was not discharged by the accused and hence it washeld riba suisites for proving the demand and acceptance of bribe had been jished and hence interference with the conviction and sentence was ifsed. Inthe RRS Seth case, the court had relied on the observations of pNoha v. State of Kerala [(2006) 12 SCC 277], wherein the Supreme (yuttook notice of the observations made in the said case at paras 10 nfl wherein it was observed as FOLLOWS: “sessesss..-- When itis proved tuthere was voluntary and conscious acceptance of the money, there is frther burden cast on the prosecution to prove by direct evidence, the tind or motive: It has only to be deduced from the facts and ttunstances obtained in the particular case.” The learned Judges also tknotice of the observations made by this Court in Madhukar o Joshi v. State of Maharashtra [(2000) 8 SCC 511.07), i en it was observed that “The ise to be ee sists for drawing the presumption is that there was paym z 4 es i the tee of gratification. Once the said premise 1 seni. tobe c : “ jon was accep i drawn is that the said gratificat ficial act. So the word "ei rd? big... £08 doin ing to do any © tee g or forbearing to do any ‘use re t et need not be stretched to mean 16 econ the fecal , i mite presumption which the courthast “Ifacceptance of able a Was payment of gratification: «""" s was acceP Me Or pee an help to draw the presumpP official a0 ward for doing or forbearing ' do6.26 “gratification” must be treated inthe contexttomean giving sati ion to the public servant who received it » a (iv) The Supreme Court, then observed that in all thee hereinabove the amount received was held to by way of pratt these could be no escape from the conclusion that it would, corruption within the meaning of Prevention of Corruption A offence under the Indian Penal Code. Thus, the most check before a public servant can be booked under the p ‘Corruption Act, the ingredients of the offence will have tobe, from the facts and circumstances obtained in the particular case (v) Inthe instant case the court observed that the amountthati to have been accepted even as per the allegation of the comp), informant was not by way of gratification for doing any fa accused, but admittedly by way of professional fee for ey treating the patients. However, no presumption can be drawn , accepted as motive or reward for doing or forbearing any official to treat the receipt of professional fee as gratification much gratification. The professional fee even as per the case of thecor informant was that this act on the part of the accused appellants) contrary to the government circular and the circular itselfhad ander which stated that the government doctor could do private practices provided he sought permission from the government in thisregatd. (vi) Thus, if a particular professional discharges the duty ota that by itself is not an offence but becomes an offence by virtue ft that it contravenes a bar imposed by a circular or instruction government. In that event, the said act clearly would fall withintiea® of misconduct to be dealt with under the Service Rules but woul constitute criminal offence under the Prevention of Corruption A ___ “Inthis case, the conduct of the appellants who are alleged” indulged in private practice while holding the office of; wi and hence public servant at the most, could be proceeded departmental proceeding under the Service Rules butinsomr out ofan offence either under the Prevention of Corruption f the IPC, would be difficult to sustain as we have ae i since? eee of patients by doctor and thereby charging itself, would notbe an offence but as per the complainr Asio” of ' ‘Corruption Act, 1988 q to the overnment circular wp; oe be conducted by the gi cute which instructeg 627 Pie ded permission Was couse doctors tht private ' gi we appellants were De prosecuted ne Govern Stateof fos A justified if it proceeds under . Hi ent inthis regent jnd Appeal) Rules against the the Punjab Ciena uct: owever the FIR registered Gea “Wil Services jen tis not fit to be sustained’ under IPC ng action for fags ed therefore iti ot Prevention of i pigment for Habitual Offender 18 quashed. ; «on 14 of the Act provides that vie ae 14] : psequently commi Convicted pr this Act, a : y mmits an off - ofano: : qalbe punishable with imprisonment for; ae ae cere te fo 10 years and shall liable to fine. Which shall be between ghment for Attempt [Section 15] section 15 of the Act provides that whoever atte; , referred to in section 13((@) of the Act shall ae to commit an tren 2 years to five years and with fine. punished for term i. Previous Sanctio swtion 19] ion Necessary for Prosecution en oth Aten i Hi ‘ mins 7,11, 13 aS ale of an offence punishable under ‘mat, except with the ae to have been committed by a public teLokpal sanction saveas otherwise vided i @ aa Lokayuktas Act, 2013— a aa ee person who is employed, or as the case may be, ection le of commission of the alleged offence employedin his office en the affairs of the Unionandisnot removable from of that Gov ve by or with the sanction of the Central Go inthe case of i: atthe fee ‘a person who is employed, orasthe caS® may be, Comnectio eof ‘commission of the alleged offence employed Office as with the affairs of a State andis no" removable from hat Goy, save by or with the sanction of the State Go of ' ‘“mament; 7 juni6.28 ‘c) in the case of any other person, of th é . remove him from his office. me ENE thority oy Provided that no request can be made, by a ; officer or an officer of an investigation Raia authority, to the appropriate Government or competent s case may be, for the previous sanction of such Gover, for taking cognizance by the court of any of the offences aa u sub-section, unless— SPecifig @ such person has filed a complaint in aco alleged offences for which the public servant jg prosecuted; and i the court has not dismissed the complaint unde se the Code of Criminal Procedure, 1973 and directeg : complainant to obtain the sanction for prosecution against hep servant for further proceeding: 1 Provided further that in the case of request from the person othertha a police officer or an officer of an investigation agency or other ley enforcement authority, the appropriate Government or competent authori shall not accord sanction to prosecute a public servant without providig an opportunity of being heard to the concerned public servant; Provided also that the appropriate Government or any compete authority shall, after the receipt of the proposal requiring sanction prosecution of a public servant under this sub-section, endeavour to con the decision on such proposal within a period of three montis from date ofits receipt: R Provided als than case where forthe purpose of atts prosecution, legal consiltationsrequired such priodna, fortress recorded in writing, beextended bya firtherperiod ofonemonitt a Provided also that the Central Government may £0" i sanction for prosecution ofa public servant, prescribeds it considers necessary. Explanation.—For the purposes of sub-section (1), the “public servant” includes such person— ante @) who has ceased to hold the office during alleged to have been committed; or : Sought tot, ‘ere for any reason whatsoever any do} anction as required under sub-s, po t or the State Go: tral Government ve Peco ‘ashall be given by that Government iH gc or corm] A ~ (he offence was alleged to have been cotta es Office at the i? otwithstanding anything contained in the Code or cee Timinal Dis. 1973 (2 of 1974),— po ding, sentence or order passed Nee @ aa or altered by a court nee ee Judge shall be on the ground of the absence of, or any error, - ae jegularity in, the sanction required under sub-section (1), mn OF inthe opinion of that court, a failure of justice has in fact been occasioned thereby; (0) no court shall stay the proceedings under this Act on the ground ofany error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission orimregulanity has resulted in a failure of justice; () nocourt shall stay the proceedings under this Acton any other | ground and no court shall exercise the powers ofrevisionin relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. a Indetermining under sub-section (3) whether the absence of, or ies omission or irregularity in, such sanction has occasioned or “ina failure of justice the court shall have regard to the fact whether = could and should have been raised atany eatierstageinte rosea “nation —For the purposes of this section,— 9) error includes competency of the autho ity to grant sanction, rinetion required for prosecution includes sofort be « witement that the prosecution shall be at Oy oi oa any ified authority or with the sanction ofaspecifi i “quirement ofa similar nature. petent to remove the public servant 3 walt6.30 27. Analysis of Section 19 Section 19 of the Act states that the “No Court ofan offence alleged to have been committed by a py ‘ with the previous sanction from the competent lig requires that prosecution against a public ocrven te after obtaining prior sanction from Central or State Gp competent authority.” The provisions aims to balance two competing interec. need to ensure that an honest public servant is not hg performance of his or her duties by frivolous complaints, investigation into an allegation of crime isnot stifled at the th the power wielded by a public servant. : In Manzoor Ali Khan v. Union of India, (2015)? sce: | Supreme Court held that object of section 19 of the PC Actis : afine balance i.e., to protect a public servant against mala fide on the one hand and the object of upholding the probity in pu prosecuting the public life in prosecuting the public servant prima facie material in support of allegation of corruption other hand. Thus, the primary object is to save honest humiliation and harassment at the hands of those complai 0 notbe obliged by him. Itisa measure of safeguard and notamerfim The aim of sanction is nothing more than to ensure disco frivolous, doubtful and impolite prosecution. Further sanction 19 is required when a public servant is charged of any 0 sections 7, 11, 13 and 15 only, otherwise no sanction is requires’ the bar is against the court to take cognizance for the purpos There is no prohibition either under the PC Act or the C2RC : investigation by lodging an FIR or through a court init under section 156(3) of Cr.P.C. A provision similarto section 19 of the PC is also 197 of the Cr.P.C., 1973. 28. Section 197, Cr.P.C. Section 197(1) provides that no court shall bet offence committed by a judge/public servant excep” of’ sanction of the Central Government where the persoa®, ThmAtio” of ' ‘Corruption Act, 1988 pre” fi Bion Fe iin employed in oe cmilatlys permission of the State G, Fon nis or was employed in, bau ed offen: ae have been co, n , pec aPo o act in the Je nation. —For the removal of doubt ton shall be required in case ofa public. oo iegedto have been committed -undersec ee ‘on 3 544/354B/354C/354D section 371 % a 376C/3 76D or section 509 of the Indian on 197 of the CrP.C. protects importa ‘performing onerous and responsible fin ing them from false, vexatious or mala fide p yto public servants whom some lower authority] wderboen empowered to remove. It is only in aais should the sanction of the Government to thei , Further, the protection given by section 1 seson who is still a public servant at the time the p fitextends also to a person who is no longera public htvas in office when the offence charged was said to be: ‘Difference between Sanction under Section kt,1988 and Section 197 Cr.P.C., 1973 ; The application of both the sections is different Section 19 a Mbicservant as defined under section 2(c) of PCA, 1988 Maplies to public servant coming under ambit of sec. 21 «l Code, Further sanction under section 197 has t0 betaken: 4 ‘ty offence” i.e., under IPC etc., Section 19 applies only to {ined under sections 7, 11, 13 and 15. PC., there should be hy hea covered under section 197, hPL Nae wlleged act and discharge of his official duBeS 9°" the retired a5 We der section 19 of PCA, 1988- ection 19, incart ie, St . Pespusgtion 197 take within its fold both Ns ic servant. On the other hand under s ting «et Vant no sanction isnecessary Thee actin discharge of official duty” occu=ins6.32 Socig CrP.C. are conspicuously absent in section 19 of Pg. r prosecution sanction under section 19 of the Pp, coe 1g Pao ecaryifby the time the Courtis called upontotakege offence, the accused public servant has already ret 2 [Kalicharan Mahapatra v. State of Orissa, (1998) 6g, ou, the case of an accused person facing prosecution for o CC section 197 CrP.C, sanction is necessary even if the accy has ceased to be a public servant on the date of cogn} Sed user of the verb “was” in addition to “is” in section 191) i Balakrishna Pillai v. State of Kerala, (1996) 1 SCC.478] Crp, 30 Leading Cases Kalicharan Mahapatra v. State of Orissa AIR 1998 SC 2595 In this case the appellant was an IPS Officer. A raid waseon the residence of the appellant on 12-5-1990 and a good amount and jewellery were recovered. A case was registered against section 13(2) of the Prevention of Corruption Act, 1988.0 1990 appellant retired from service but the investigationint continued. On 30.9.1992 charge-sheet against the appellant was forthe offence under section! 13(2)read with section BOC: ofthePCAct | The main contention of the appellant was thatthe jslature include ‘a retired public servant’ within the purview ofthe? that there is no mention in the Act about a person who public servant. He argued that section 197 of the Criminal Code which also envisages sanction for prosecution of public now applicable to former public servants also by virtueoftte words in the section “any person who is or WaS..-+-@ According to the appellant since such words have inany of the provisions of the PC Actit could be inf precision that no prosecution can be launched or con! inuet who, though wasa public servant at the time of ‘commission crened to be so subsequently i "gsi Further, the appellant also argued that “public se val section 2(6) of the PC Act does not include a persom “iso” public servant, Chapter Il of the Act which contains prov" not beeio” of Corruption Act, 193g : : f es does not point to any Person: alt : wh ether “a retired public Servant? jst, ofthe PCAC é ee : font The SUPI Court observedas pects ong the provisions subsumed in the Cj 0 deals with offences committed by fe ts, though all such offences are in ry The remaining provisions in the Ch ons by public servants. Section 7 of the Acte os ‘aby aperson who expects to be public There is n0 indication anywhere in the abov GJ committed by a public servant under the 4 al liability at the moment he demits his 0 Ping a public servant is necessary when he iato make him liable under the Act. He cannot ltedemits his office. If the interpretation now: gppellant is accepted it would lead to the absurd servant could commit the offences under the Act’ énitting his office and thus avert any prosecution forit bieservant is prosecuted for an offence under the Acthe« pe by protracting the trial till the date of superannuation. Theappellant highlighted that section 19(1) envi ® governments as the case may be (ze., the Central Sit: Government or the authority competent to remove} ae Itwas pointed out by the appellants thatine Sot ce of the above mentioned category, ee limo, © prosecuted (as the appellant was retired so nO} isin chim). On this point the court observed thatsect Mention, i materia with section 6(1) of the preceding: stow fe Corruption Act, 1947. When ane fe ‘ee Judge Bench regarding section 6 00291 F On Wag ee vy. The State [MANU/ sci , Words Tepelled. It was held thus: *Metiey Section 6(1) of the Act are clear enOUsn® °. There is nothing in the words6.34 even remotely suggest that previous sanction was ne, could take cognizance of the offences mentioned therein: ‘f n who had ceased to be a public servant at the time the asked to take cognizance, although he had been such a By the offence was committed. It was suggested that Clause ( in 6(1) refers to persons other than those mentioned in clauses a The words ‘is employed’ are absent in this clause which, Hp apply to a person who-had ceased to be a public Servant th so at the time of the commission of the offence, Clause ea construed in this way. The expressions ‘in the case of aperson ang y case ofany other person’ must refer to a public servant hay the first paragraph of the sub-section. Clauses (@)and (b) would cover the servant who is employed in connection with the affy af Union ora State and is not removable from his office Save by or with sanction of the Central Government or the State Government and clay (c) would cover the case of any other public servant whom a authority could remove from his office. The more important wordsin (C)are ‘of the authority competent to remove him fromhis office,” The same view was adopted by another three Judge BenchincR Bansi v. State of Maharashtra [MANU/SC/0104/ 1970]. This vas followed in State of West Bengal v. Manmal Bhutoria [MANU/ 0157/1977]. The Constitution Bench in K. Veeraswamiy. Uni India [MANU/SC/0610/ 1991) upheld the view that no sanctionisi to prosecute a public servant after retirement. However, it was further contended by the appellants that the Position must be treated as changed under the Prevention of Comipt Act of 1988 since Parliament has in the meanwhile changed the wot in section 197 of the Code. The provision provided a check aga launching Prosecution proceedings against a public servantonthe * of having committed an offence while acting or purporting 0? i discharge of his official duty, For such prosecution a 0 Govemment is made a condition precedent ynder section 197¢ nv of Criminal Procedure, 1898 (the old code). But suchasanclon then necessary whena retired public servant was prosecus, on 19M” in the corresponding provision of the present Code or st necessity for previous Sanction is made applicable to formet Jjon Of CON EE A AIS ds “when any perso; a : . othe WOH . Whois ory, woe anere is that the earlier decisions ofthe Public oo sanction for Prosecution Was note tt Were as for a public servant Who has templated in “isions are oft help tn e above contention, the court ref on s a iin Pilial v. State of Kerala [MANU/g¢, iain case of R, ‘ce Ahmadi has referred to the Law Co, dat 1996] where fst amendment to section 197 ofthe Coq. wot StePott which Pedant : Code. (commission in paragraph 15.123 ofits Raitt observation of . x [ yo rs to us that protection under the se he | ea : ction is ae fer retirement of the public Servant as before pe led A f_ poection afforded by the section would be rendered ifit were open to a private person harbouring a grievance to wait intil the public servant ceased to hold his official Position, and then plodge a complaint. The ultimate justification for the protection anferred by section 197 is the public interest in seeing that official gis do not lead to needless or vexatious prosecutions, It should ieleft to the Government to determine from that point of view the qestion of the expediency of prosecuting any public servant.” TheSupreme Court after referring to the above report observed: “It isinpursuance of this observation that the expression ‘is’ to make the Sin applicable even in cases where a retired public servant is sought teprosecuted.”” sbered that in spite of bringing such a significant change to 197 of the Code in 1973, the Parliament was circums, . # he change the wording in section 19 of the PC. 1 slhsanction. The reason is obvious. The sanction cones = : : e “as x Be 97 of the Code concerns a public na a n ’ ne a nee alleged to have been committed by gh he Ort ; ; ; fences © ‘0 ‘act in the discharge of his official hho Riess Ontemplated in the P.C. Act are those “ ‘ade Nofiass Cther directly or even purportedly eer maintain the duties. Parliament must have desire . () Inthe light of the above discussion, the courtheld that itmustbe6.36 ee distinction and hence the wording in ine go anspor the former P.C, Act was materially imported in j 5 1988 without any change in spite of the change made new of the Code. f Me (v) The result of the above discussion is thus: A public committed an offence mentioned inthe Act, while he wasa when the court takes cognizance of the offence; but ifhe lie se public servant by that time the court can take cognizance of ps any such sanction. In other words, the public servant who comms offence while he was public servant is liable to be prosecuted: continues in office or not at the time of trial or during the pendency, prosecution. The Special court and the High Courthave, therefore, Pe repelled the preliminary objections of the appellant. Accordingly we this appeal. Abhay Singh Chautala v. CB. (2011) 7 SCC 141 Facts: In this case charge sheets were filed against the Appellant (Abhay Chautala and Ajay Chautala) for the offences under sections 13()(@) and 13(2) of the Prevention of Corruption Act read withsection 109 of Indian Penal Code in separate trials. It was alleged that both ie accused while working as the Members of Legislative Assembly hi accumulated wealth disproportionate to their known sources ofin Need of such investigation and charge sheet had arisen fromthe of the Court which had directed the CBI to investigate the case recruitment, When the CBI started investigating the case, it found father of the appellants had acquired huge properties and same case with the both appellants. The CBI submitted that inthe of 7.6.2000 to 8.3.2005, appellant Abhay Chautala had ae worth Rs. 1,19,69,82,619 which was 522.79% of known 50 vast income. During the check period, Shri Abhay SinghC Member of the Legislative Assembly Haryana, Rosi Co ash in case of Ajay Singh Chautala, his check period was taken 60 to 31.5.2006, had accumulated wealth worthRs. 27,74,74 sod was 339.26% of his known sources of income. In thes=” esi Chautala held various post of MLA and MP. It was on a ol charge sheet was filed. No sanction was obiained fromaa of Corruption Act, 1983 nit Z Hlants. An objection repard; : e 93 Y ie Special Judge, who helg that toh fs s ae not contain the allegation that the é . spect fice aS member of Legislative ‘Assembly pe rset e necessary: The order of the speciay judge Pion 8 482 of CrP.C., before the High Co; nthe challenged ey = se special appeals were filed, : eo ent of the appellants was that on the day when the s ant charges he? jor on any date when the cognizance was take; ge ce admittedly public servants and, theres sete ol ‘Ore, under the plai; 7 reection 19(1) of the Act, the Court could not have oe ce unless there was a sanction. They argued that the cases o f we n Singh Badal v. State of Punjab [2007 (1) SCC 1JandRs, ree AR. Antulay [1984 (2) SCC 183] were not correct and ec consideration and urged for areference to be madeto aLarger ofthe Supreme Court. e Jearned Solicitor General appearing forthe Tespondent urged that zhwon the question of sanction was clear and the whole Controversy | wselatrest in Antulay’s case which was followed throughouttill date, _ fuer, in Balakrishnan Ravi Menon vy. Union of India [(2007) 1 045], K. Karunakaran v. State of Kerala [(2007) 1 SCC 59] and ubibullah Khan v. State of Orissa [(1995)2 SCC 437], this Court lclearly laid down the law and had held that where the public servant titused the office which he held in the check period but had ceased to aa office” or was holding a different office then a sanction would Necessary, tne: Whether sanction was required for prosecuting the appellants? - oa G) The Supreme Court observed that there is noneed 7 Nie tO OF the Anéutay’s case as it has stood the test of es : Shi to disturb the decis,on. The argument oe i s fe Famer aetrine of per incuriam was also ma oaaee Sinope ced With regard to per incuriam was are *Son gsi Section 6(2) of the 1947 Act. In short, the argu eae ; ee Which is pari materia with section 19(2) of he “ded) that iin case of doubt as to which authority s _ roi ‘ 6.38 Socio-Eeo) give the sanction, the time when the offence is alleged committed is relevant. The argument further goes on tg ifthat is so, then the Act expressly contemplates that q may be holding office in a different capacity from the one, holding’ when the offence is alleged to have been comm time when cognizance is taken so as to cause doyby . sanctioning authority. Thus, there would be necessity of q on the date of cognizance and, therefore, in ignoring thi decision in Antulay’s case (cited supra) has suffered an ill Same arguments were also raised in the instant case. Itigg that in the light of section 19(2) the sanction is must. Ifnot from they competent authority, then, from that authority which was compe remove the public servant at the time of the commission of suchanof However, the court held that argument is basically income Antulay’s case it is notas ifsection 6(2) of the 1947 Actasittheng was ignored or was not referred to, but the Constitution Bench had specificaily made a reference to and had interpreted Section6asa Therefore, it cannot be said that the Constitution Bench had totallyig the provisions of section 6 and more particularly, section 6(2). Onceth Court had held that if the public servant’ had abused apa office and was not holding that office on the date of taking co there would be no necessity to obtain sanction. It was obvious was not necessary for the Court to go up to section 6(2) asin case, there would be no question of doubt about the sanctio authority. In our opinion also, section 6(2) of the 1947 Act, wit pari materia /o section 19(2), does not contemplate a situations to be argued by the learned senior counsel. We do not agree proposition that the Act expressly contemplates thata: publicse™ be holding office ina different capacity from the one thathewas™ when the offence is alleged to have been committed at the tint cognizance is taken. That is not, inour opinion, theeventuality ae in section 6(2) or section 19(2), as the case may be. Inui, the Court went on to hold that where a public servant ni capacity altogether from the one which he is alleged tohave™ would be no necessity of sanction atall. This view Was oion of Corruption Act, 198 fi pre i of section 6 generally and mo ta ari materia to section 19(1)(c) of, pat is Ea necessity of sanction at all, th he any doubt arising about the sanets in section 1 9(2), in our opinion, is ic servant may have abused ay ee occupies any other office subseq ie” he wnat W {ll be the incorrect reading of jase” remplates a situation where there is a con _ 2 inp nctioning authority should be the her Government or any authority compet tg in section 19(2) are to be readin conju mew? 19(1) (b) and 1 9()(c). These clauses onh n> to be the authority which is capable of ' hor Therefore, in our opinion, the arg ia mquage of section 6(2) or as the case may be, correct. Jn i Itis in the light of this that the Court did not have under what circumstances would a duty arise for locating givesanction. The doubt could arise in more manners that mor situations than one, but to base the interpretation ofs tteAct on the basis of section 19(2) would be putting the cart’ lose. The two sections would have to be interpreted in a rationa Once the interpretation is that the prosecution ofa public servant. different capacity than the one which he is alleged to have, abused, Shoquestion of going to section 6(2)/19(2) at all in which case the tno question of any doubt. It will be seen that this interpretation 0 nition 6(1) or, as the case may be, section 19(1), ison the basis ofthe ; een “office ” in three sub-clauses of section 6(1), or the case” Persyaye oto" 19(L). For all these reasons, therefore, we are not © incu 0 accept the contention that Antulay’s case was decided Meraswamt of section 6(2). In our opinion, the decision in K. Htention ‘V. Union of India is not apposite nor does it support the a Late being "aised by the learned senior counsel as regards Antulay’s Per incuriam of section 6(2)- ; ssse ud' } | i 6.40 Socio-Economis (iii) Another novel argument was raised on the basis ofthe of “public servant” as given in section 2(c) of the Act, The eta, based more particularly on section 2(c)(vi) which provides that onaccount of his position as such, is public servant. The agunen, some persons, as contemplated in sections 2(c)(vii), (viii), (x) me may adom the character ofa public servant only fora limitedting after renouncing that character of a public servant on account if time or non-continuation of their office they are to be tried forthe of on their part ofthe offices that they held, then it would bea very situation. We do not think so. Ifthe person concerned at the time: is to be tried is not a public servant, then there will be no necesgi on sanction at all. Section 19(1) is very clear on that issue, We dong, s how it will cause any hazardous situation. (iv) The Court concluded: The relevant time, as held in §,4, Venkataraman v. State is the date on which the cognizance istaken If on that date, the appellant is not a public servant, there will be no question of any sanction. If he continues to be a public servant but ina different capacity or holding a different office than the one which isallegedto have been abused, still there will be no question of sanction and in that case, there will also be no question of any doubt arising because the doubt at arise only when the sanction isnecessary. In case ofthe present appellanis, there was no question of there being any doubt because basically thee was no question of the appellants getting any protection byasanction (v) Thus, we are of the clear view that the High Court wassbsii@ right in relying on the decision in Prakash Singh Badal. State ss 4 to hold that the appellants had abused entirely different office oro than the one which they were holding on the date on whicheo ail was taken and, therefore, there was no necessity of: sanction = 19 of the Act.