Scribd Logo
Upload

Welcome to Scribd!

  • Prevention of Corruption Act

    Uploaded by

    Ayush Sharma
    87 views40 pages

    Original Title

    prevention of corruption act

    Copyright

    © © All Rights Reserved

    Available Formats

    PDF or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    Report this Document

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    87 views40 pages

    Prevention of Corruption Act

    Uploaded by

    Ayush Sharma

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    of 40
    CHAPTER 6 CORRUPTION CoN OF ico ‘ The term “cormuption” comes fro m the lati “ Wy} “moral decay, wicked behaviour, “a = ms ruption ” Which gs corruption generally Tefers to ileot: iis “In | cigvingof bribes, using force to extort money, enbezingting oaking My! -aling taxes, using position and Power for dishonest steating, " gilaundering of money. The concept of corruption, was discussed at length in , janhich it was held corruption as something against or forbidden by law, _,| aualtuppitude or exactly opposite ofhonesty involving intentional ditepard _ slaw for improper motives, It Covers the act ofan officer in accent, _| tbs ltcovers every class of crime amounting "| Samitted by ministerial or judicial officer. State of MP. y, Ram Singh,” the Supreme Court held that “The aff tee of Corruption was found to have enormously increased by the gl "4 Second World War conditions. Corruption, atthe inital sees, nisidered to be confined to the bureaucracy, bie had the | Feats to deal witha variety of State largesse pee Hing, "4 rants, Even after the war, the opportunities fore a Hai. “large amounts of ‘government surplus stores ee Stage «¢ °F by public servants. As a coi ae “reoehGeae Pas," V2tious goods necessitated the imposition (ee Ye schem struction involving the dis e t €s of post-war reco! f the public servan ae ofmoney which lay in the control 0 5 a to felony when intentionally A to the glittering Of y, aye discretion, with the result of luring them call a $ Oa snd property > Correseeeae a AIR gn “PP., 69, p. 2d 77, 87. * f 900 Sc 870 (673), disease - i [6.1] CFF CT a a | i 4 | | : tee 6.2 The Supreme Court further held that “co; isa disease like cancer, which if not detected in time, is the polity of the country leading to disastrous Consequen, asa plague which is not only contagious but ifnot controlled e afire ina jungle. Its virus is compared with HIV leading ig 48 : : AlDg incurable. Ithas also been termed as royal thievery. The sociad system expose to such a dreaded communicable disease ig likely tp Poli under its own weight. “Corruption is opposed to democracy act order, being not only, anti people but aimed and targeted against ther affects the economy and destroys the cultural heritage. Unless rine the bud at the earliest, it is likely to cause turbulence - shaking the soci economic-political system in an otherwise healthy, wealthy, effectivean, vibrating society.” [mPRCT ON Evonam y / InStatey. 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 ifeach % 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 sprinkle the magic drops on the eyes for the reality of the life. Untess one tries to find a golden key to open the gatesof wisdom, the heavenly life remains as a myth and we are all making the futile effort to attain divinity in our life. The me man should have crystal clear and transparent personav Caesar's wife must be above suspicion”. * ee Senants that in Jayalalitha v. Union of India,’ Justice Nanavathi opine! corruption corrodes morals and corruption by public servants a fe leads to corrosion of the moral fabric of the society butalso baal, | national economy and national interest, as the persons OCCUPY PS se Posts inthe Goverment by misusing their power to corruption alt le damage to the national Economy, national interest country, 4. AIR 2001 SC 222 (223). 5. 1999Cr.L.J. 2859, a iS eruption Act, 1988 63 ¢ af «1+ 10 from lowest National level to global level. tion IS aged as “Scams” and “Kickbacks”, ifitis arise ’ eet or rores of rupees oF more. This phenomena is {nto millionaires overnight or enriching politicians : ed the character ofa social menace spreading a ‘Asasocial problem corruption has assumed alarming sis! ing misery and gloom to the generality of the people. shakesthe faith ofan average citizen in his country’s institutions, ‘al, yeaning and Definition of Corruption Thesimplest definition of corruption is, any act or omission by a public ont for securing pecuniary or other material advantage directly or t | ,drectly forhimself, his family or friends, is corruption. Bouvier, in his |) j«yDictionary, defines corruption as “An act done with an intent to give t | «meadvantage inconsistent with official duty and the rights of others. It ) | cludes bribery, but is more comprehensive, because an act may be 1 | eomuptly 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” | tus 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 foprocure some benefit for himself or for another person, contrary to duty and the rights of others. “ j | Simple dictionary meaning of corruption is “dishonest and illegal i behavior by people in positions of authority or power/” Santhanam committee has observed that itis difficult to define corruption 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 nbridged Edition (1964), 8rd Edn., Vol. |. p. 688. « « _ and ramifications in society as awhole.,. it ined exercise of power and influence attacheg toa special position one occupies in public life,” According to section 7 of the Prevention Of Com. corruption is an act cf “acceptance or demand of for doing an official act” by public servant, “eal 3. Need of the Prevention of Corruption het Eradication of corruption from public offices ig gna important tasks before every government. From eo : ’ Tom time to Government of India has been taking legal steps to combat corruption. the The Indian Penal Code contained various provisions prevention of corruption by public servants in the chapterti : By or relating to Public Servants” in Chapter IX. Apart provisions, various other provisions relating to CriminalB Dishonest misappropriation of property and other similar spe provisions were utilised to punish the offenders. The first specific the subject of corruption by public servant was enacted in the yeat} which was supplemented by the Prevention of CormuptionAct, 19 The Prevention of Corruption Act, 1947, the Penal Codeproy sections 161-165A and other provisions were found insufficientioca orevento control the grave evil of bribery and corruption public service of our country. Thus, government appointed acohis review the problem of corruption and to make suggestions. inthist 4. Santhanam Committee Report on Corruption The Government of India appointed a committee with its Chairman to review the problem of corruption and tom! on various matters connected therewith. One of the terms© the committee was ‘To suggest changes in the law wilt Speedy trial of cases of bribery, corruption and criminal 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. Corruption Act, 1988 a pion of fe sttee inits report opined; is tion ‘ct, 1947, the procedural law in of sedure Code, 1898, Criminal Law (Amendm i ps sie special rules of evidence relating to such cases in the Sration of Corruption “Act: “The working of the relevant ‘jsions of these enactments in prosecutions in Courts and Figo at the stage of investigation have disclosed that certain 8 changes it the law are required in order to ensure speedy trial and more effective rules”? tions of the Santhanam Committee : had submitted its final-report in March 1964. It ~ ents. x Recommenda The committee recommended amendment of certain service reg en jnpursuance ofits interim report a central vigilance commission’ setup in 1963, with. Mr. N. Sreenivasa Rao (aretired Chief Justice of the Mysore High Court) as the first vigilance commissi 10 Several amending ‘Acts with an accent on strengthening the legal machit if ruption tax evasion, food adulteration, foreign exchange The amending Acts increased the powers of the iny magistrates, by providing summary trials and di in ofappeal 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 Laws (Amendment) Act, 1964 [amending the Indian Penal Code, 1860, the Criminal Procedure Code, 1898, the Prevention of Corruption: Act, 1947, and the Criminal Law (Amendment) Act, 1952] were passed by the Parliament.” Itbrought to light several omissions and loopholes in the Indian Penal Codeand suggested their removal. The Committee wanted inclusionin the definition a —___Ieaene a iene : 9. Id. P- pana 72 &73 as quoted in 29th Law Commission Report, 4966, p. 1. . supra, n. 31 at pp. 31 & 34. ee sSanthanam Committee Report, pp. 53-54 & 8-11 quoted in Mahes Chandra, Socio-Economic Crimes (1st Edn. 1979), pp- 54-58. 10. 41. 66 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 als 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 Court and High Courts under Article 32 and 226 respectively should be limited by an amendment of the Constitution. The Government rejected the suggestion. Thereafter, based on the recommendations of Santhanam Committee, Anti-corruption Laws (Amendment) Act, 1964 was made which brought changes in the Prevention of Corruption Act, 1 947, but inspite of above amendment, the 1947 Act was found to be inadequate to deal withthe | 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 Parliamentreccivel the assent of the President on 9th September, 1988 and it came into force on 9th September, 1988. 6. Statement of Objects and Reasons of Prevention of Corruption Bill, 1988 The statements of objects and reasons attached to the bill of Preveai of Corruption Bill, 1988 expressly mentioned that the object often : toamend the existing anti-corruption laws with a viewto malig more effective by extending the scope and ambit of the definition®? F * servant” and to bring to “within its sweep each and every person i an office by virtue of which he was required to perform any public 7 (1) The Bills intended to make the existing anti-corruption gs ~ effective by widening their coverage and by strengthening the es io ‘ (2) The Prevention’of Corruption Act, 1947, was amends ased on the recommendations of the Santhanam Committee a The Preventio, - 7 provisions ; cq orruption Act, 1988 § pons and thogehter TX of the Indian Penal Code to deal with public Fee rr Ovisiona Hane Det a Gach tte eee nact There enable atta} Crimi, Nt OF 1 pop naa! Law Amendment Ordinance, 1944 to including from sciten Wealth obtained through corrupt means, With modig Wealth. The Bill seeks to incorporate all ; aon ions so as to make the provisions more ‘ ruption, i . (3) The Bill, ee Cae Re CO servants. i fthe expression “p14 visages widening the scope of the de: inition 4 Public servant’ i tions 161t0 165A. of the Ind; > Corporation of offences under sec i dian Py = forthese offenc, . -Hal Code, enhancement of; penalties provided E hi esata) Corporation ofa Provision that the order of the tal court upholding the Stant of sanction for Prosecution would be final if sno! already been challenged and the trial has commenced. In order bexpedite the Proceedings, provisions for day to day trial of cases and pohibitory Provisions with regard to Srant of stay and exercise of powers dfrevision on interlocutory orders have also been included. (4) Since the Provisions of section 161A are incorporated in the Proposed legislation with an enhanced punishment, itis not necessary to ®uiin those sections in the Indian Penal Code. Consequently, itis proposed ‘odelete those sections with the necessary saving provisions, “Object of the Prevention of Corruption Act, 1988 Thestatements of objects and reasons in the Anti-Corruption 1988, ~~entions that the o bject of the Act is to consolidate and amend the i-cortuption laws with a view to making them more effective. It Tints the scope and ambit of the definition of ‘public servant” ant bring within its Sweep cach and every person who held an office by virtue of © Was required to perform any public duty and enhances Penalties le for offences in earlier laws. The underlying idea was to eradicate evil Sfcoruption, [L.K. Advani v. Central Bureau of. Investigation, CiLJ2559 (Delhi HC)] 3 S, the Prevention of Corruption Act, 1988 was enacted with eet to Prevent the evil practice of corruption more effectively. a «'vants alone fall within the ambit of Prevention of | Pon Act, 198g, 6.8 8. General Scheme Of the Act - The Act Contains 31 ie a 9. Definition of Public oe Section 2(c) of the Prevention 0 servant’: It covers 12 categories of persons —~ ese a nS en eer ae - Offences and penalties are dealt under chapter third. . Investigation of offences is dealt under the Chapter fourofthe: . Chapt Sections dividedi The first chapter contains sate a a ae Itdefines who isa‘ i Chapter two deals with appointm (section 3 - Section 6), : * Section 7 - public servant accepting illegal gratification, * Section 11 - public sery ini ant ob i acepeel obtaining valuable thing) + Section 13 - criminal misconduct by public servant. + Section 8 and section 9 apply to “any person” who it a public servant by corrupt or personal means. Section 10 deals with abetment of offences under section! and 9 by public servant; section 15 punishes for attempt offences under this chapter. é ¢ Section 12 punishes bribe givers. under section 17 and section 18. er five contains some very relevant roe revious sanction of appropriate government for pro (eea6H 19); section 20 creates legal presumption servant where itis presumed thathe accepted bs g for the purpose as stipulated under section 7, 11,1 once it is proved that s accepted; section 21 allows ace ; witness and lastly section 24 gives i statements made by him during any’ oo rvant [Section ac) fCorruptionAct 1988 defines cons immespective of the — ,antion of Cor ae a es ME ROS Pa es Phe ey they hay, Om Of Corruption Act, 1968 or the pubie Pointed by i t. Further, the exp: es ~Sthe ps » “ie explanation attached to the definition ofa pubji, Servant sham tt any Person wo is actually holding the rection 6.9 @ Ons cas of, Public Servants are as follow: by i = in the service or. Pay of the Government or remunerated any publi. fis by fees or commission forthe performance of @ An — a es — In the service or ‘Pay ofa local authority; Tson in i i i, ai Saree. oe or pay ofa corporation established by or revise an electoral roll or to an election; : on who holds an office by virtue of which he is authorised uired to perform any public duty; ere Co-operative society engaged in agriculture, industry, ing, receiving or having received any financial aid ral Government or a State Government or from any 6.10 . Socio-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; (x) Any person who isachairman, 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 selection on behalf of such Commission or Board; (xi) Any person who isa Vice-Chancellor or member of any, governing body, professor, reader, lecturer or any other teacher or employee, by whatever designation called, of any University and any person whose services have been availed of by a University orany other public authority in connection with holding or conducting examinations; (ai) 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 arisea 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 v. State of Oris AIR 1955 SC 1123 it was held that Member of Legislative , may fall under the definition of public servant under clause (viii) asb® , holds an office and performs public duty as defined in section 2(b) of 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, Sur! Court held that “a member of parliament” holds an office and bY jon of Corruption Act, 1988 6.11 nti heis required or authorized to perform duties, and such Eee of public duties. Thus MP is a public servant under this ein varlyinM. Karunanidhi v. Union of India, AIR 1979 SC 398, Sot held that, “a Minister, Prime Minister and Chief vpalusive, is decidedly a public servant in terms of clause (12) of E21 of PC, which corresponds to clause (i) of clause (c) of section igg8Act. It further held that a minister is appointed and dismissed by orand 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 ee nt funds. This brings him within the definition of public servant jon 2(c)(1). The Supreme Court in Manish Trivedi v. State of Rajasthan, AIR SC 648, observed that the Prevention of Corruption (PC) Act, I score widening of the scope of the definition of the expression ilicservant and it was brought in force to purify public administration. Mrelegislature has used a comprehensive definition of, public servant ahieve the purpose of, punishing and curbing corruption among public mils... bearing in mind this principle, when we consider the case ofa a councilor, we have no doubt that he isa 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 Strequired to perform any public duty, to be a public servant.” Ths byabove interpretation, “Municipal councilors” come under esos ofpublic servants and they can be prosecuted for their corrupt i. pider the Prevention of Corruption Act. és “Eettinent to note here that, before 1988 Act, the definition ~olic ive CP OWed from Indian Penal Code, section 21 which was not agg ueh Specially because where the Prevention of Corruption tinge ic legislation, Penal Code is wider and generally applicable Sa Pe Of PCA was to bring into its ambit every person who le by '* office and performs a public duty, the same was not Theog , ~°Towing and interpreting section 21 of IPC. Nina. 12bove case further observed that relevant provision for Mof the question whether the accused in any caseis a public 6.12 Socio-Economic Servant or not, Section 21, IPC is of no relevance ae jonof aces ‘ ; of Conpeat Ate OEE on of provision of section 2() of the an ex/retired public Servant can be p ‘as determined in Stat, servant would not wipe o: a ut the offence, which he committed W hil cat a a tS ort, be traced to having a bearing on public i or the interest oft the community at large. 4 Pah Thus scope of the definition was further extended by Supre to bring private players who effect public interest within the Act. In CBI, Bank Securities and Fraud Celly. Ramesh was held that even “officers of Private Bank” are public se observed, that “public duty” means a duty in the discharge of: State, the public or the community at large has an interest, and; to explanation, in this clause “State” includes acorporationes or under a Central, Provincial or State Act, or an authority owned or controlled or aided by the Government or a Go company. The above provision was conjointly read with Banking and Regulation Act, 1949 which deemed chairman, ant managing director as well as other officials of banking com “public servant” for the purpose of section 161-165 of. PC. that the pith and substance of section 46 cannot be defeated) the same were now repealed, as the said offences in theirs embodied in PCA, 1988. aa + Similarly in matter of Reliance Telecomm a Union of India, the telecom dispute settlement a ae held that license is given to the private companies witha 12. Criminal Appeal Nos. 1077-1 081 of 2013. ‘ion of Corruption Act, 1988 613 «ation services to public at large, thus it could be said that ee dertaken to perform a public duty. Therefore officers of Cs mecompanies are public servant within the section 2(c). F cecourtshave brought a large number of officials within the Peact by interpreting the term public servant. Thus a public pr State of Maharashtra v. Suresh Gopala Rao, 2008 Cri 0 992 (Bom), Chairman of Co-operative Society (State of ynshtra ¥. Laljit Rajesh Shah, AIR 2000 SC 937), elected iatVeS, employees of nationalized banks, railway employees, wsiy employees etc., are considered public servant under the Act. tence 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 ysoffences and also provides punishment for that. ‘tence Relating to Public Servant being Bribed tion 7] ‘ition 7 of the Act in short provides that any public servant who Siniue advantage from any person shall be punished. It provides pubic servant who:— 4 chains or accepts or attempts to obtain from any person, an undue e, to perform public duty improperly or dishonestly cause carance to perform such duty either by himselfor by another - Public Servant; or ; Als or accepts or attempts to obtain, an undue advantage tom any lh asa sss for the improper or dishonest he te® Of public duty or forbearing to perform such duty ‘) byhimself or another public servant; or : Nisho induces another public servantto perform pee day nestly a public duty or to forbear performance 0 be “iq Uticipation of or in consequence of accepting trig fom any person shall be punished, as with imprisons ich shall be between three to seven years and wi [section 7A] 6.14 ; ‘Se 6 oes Explanation J of the section further provides that, forthe, s section, the obtaining, accepting, or attempting to ob advantage shall itself constitutes an offence even ifthe public duty by public servant, is not or has not been improper f Explanation 2 further clarifies that that expressions “9 “accepts” or “attempts to obtain” shall cover cases where a pub “obtains” or “accepts” or “attempts to obtain”, any undue ad; himself or for another person by abusing his position or by using his, influence over another public servant; or by any other corrupt means. Further, it is immaterial whether public servant “obt, : “accepts” or “attempts to obtain” the advantage directly or through party. ang “Undue advantage” has been defined under section 1) of th according to which, “undue advantage” means any gratification y other than legal remuneration. The word “gratification” is not defined in the Act buti extended by the explanation which says that the word isnot any pecuniary gratification, or to gratification estimableimm word gratification is thus used in its larger sense as connotinga which affords gratification or satisfaction or pleasure to the tastes or the mind. The gratification can be in Cash, Kind or of Position. word “gratification” is used to denote acceptance of some pleasure or satisfaction of the recipient. Ifthe money paidisnot satisfaction or pleasure of the recipient itisnot gratification” is used in the section. [Mohmoodkhan Mahboobkhan Pa of Maharashtra, (1997) 10 SCC 600] 13. Taking undue Advantage to Influence a Publi¢ provides that whoever accepts c servant to perform 1m] fora term which shall be Aof the Act induce a publi imprisonment Section 7 bet Fo on scorn” RT re ribing a Public Servant [Section 8] rovides as follows:— : iy person wo gives/promises any undue advantage to another woo emgucerreward a PUL servant for improper pert plic duty—shalll be punishable with imprisonmentof up to or fine OF both n has been compelled ply where the perso eported to law enforcement date of giving such undue give : 49 cies within seven jtisnot relevant whether such undue advant athird-party and whether the (0) jrectly OF has been. received by the same performed the concemed public duty. under section 3 of Amen! iesrvants who have deman ed bribes will of: institutional iistions. Thisis where the overall factors > prosecuting al ith of the law enforcement, ther developed countries, i * i d skillsets ie Compared to 0 ee mes the autonomy, in capacity, “0us institutions is concerned, to adequately deci 4}, ott Fran’? Relating to Bribing al Organisation [Section 9] event BY 8 i ti fs of the Act provides that bribing, a public ie ‘“\ organisation is an. 0: ence: oT : 2 a undue ‘ vom My, “4 ®etog rganisation gives OT public corvant”? Wil a intent 10.0 a m can be held liable “if 27? ; romises to give ines : 0 Jorretsin Se ee - 6.16 associated with such organizations. In order to cast +r intermediaries who provide bribes on behalf of commercial on behalf of the commercial organisation” to be a person, 4 with such organization. Consequently, commercial organizatig held liable for the actions of their employees, agents, servic 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 and charge, including director, manager, secretary or other offi of the offence. Thus, it poses direct liability for commercial: in India and hasa far-reaching impact on the officers guilty punishable with imprisonment for a term not less thant extendable to seven years in addition toa fine. Commercial organizations can avoid liability forab person associated with them by demonstrating thatthe bite to the public servant despite the organization putting mS procedures designed to prevent "it. io The Act has not defined adequate procedures, buthasm Central Government to formulate and prescribe we ons associated with the CO from bribing any PY Until the Central Government no) fing oil procedures, the CO operating n eos me a + aance/n0l <. ‘ons issued by internatio! 6.17 roreign Corrupt Practices Act, 1977 (¢ FCPA’): Resource Guide @) «syed by Departm i yy Department of Justice (DoJ) and a Commission (SEC) in the U.S, ?) and Securities Exchange prevention of Corruption Act, 1988 six Principles of Adequate Procedures defi , © pribery Act, 2010 lefined under the U.K. : . % OECD Recommendation for Further Combating Bri f : Foreign Public Officials in Intemational Business ais, Sieh - 0) 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. 7 #6. 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 connitted by a commercial organisation, and such offence is proved in thecourt to have been committed with the consent of any director, Mauager, secretary or other officer, then such director, manager, secretary trother officer shall be guilty of the offence and shalll be punished with inprisonment for a term between 3 years to 7 years and shall also be Tebleto fine, : - The explanation attached to this section provides that, for the purposes tis section, “director” in relation to a firm means a partner inthe firm. 1 Pubtic Servant Obtaining undue Advantage without , ection 11 of the Act provides that if “di ‘dvantage without consideration from any person concemes £14 “dings or business transacted or having ay Taal with a ite functions of such public servant I be pnd shall also be Soot fora term between six months to 5 Years 6.18 Inother words, section 11, prohibits a public servant ee unconscionable advantage out ofa bargain witha Person wit comes in contact officially. It does not prohibit a sale or a public servant, at a fair Price, to or from a person. with whom th Servant may be transacting business on behalf of government inhis Capacity. Example, Aisa public servant working in the Public Works and in-charge of approving tender for road construction. A acosn from B without paying him any money. You know that his comp apply to your department for approval ofa contract to builda ki, InR.S. Nayak v. A.R Antulay, 1986 AIR 2045 the Supreme; observed that, sections 11 of the Act have been enacted by the witha view to eradicating corruption in public life. The courtmust interpret section 11 according to its plain language without in any; being anxious or astute to narrow down its interpretation. Section: be construed in a manner which would advance the remedy and the mischief which is intended to be curbed. : 18. Punishment for Abetment of Offences [Section 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 im aterm between 3 years to 7 years‘and shall also be liable to fine, ; 19. Criminal Misconduct by a Public Servant [Se (1) A public servant is said to commit the offence of misconduct,— : : (a) ifhe dishonestly or fraudulently misappropriates or converts for his own use any property entrusted toht property under his control asa public servant or allows! person so to do; or 5 (b) ifhe intentionally enriches himselfillicitly during the office. , ti * ae safillctly if he or any person on his enriched n_1.—A person shall be presumed to we 3 of Corruption Act, 1988 h dishonestly. or fraudulently mnisappropriates himself or allows any person to misappropriate any property entrusted to him in his official capacity. itheintentionally enriches himself illicitly during the period of his office. hing of ‘Intentionally Enriches himself llicitly’ TZ attached to section 13(1) provides that a person shall dto have intentionally enriched himself illicitly ifhe or any ibehalf, is in possession of or has, at any time during the fice, been in possession of pecuniary resources or property inate to his known sources of income which the public servant ‘lawful sources. 5 e . ution tea charge under section 13(1)(b), the prosee g ingredients, namely (1) the Sale ie isa public servant, (2) thenatun ang in 6) it ; which are found in his possessio‘» urces ofincome ie, lnown Socio-Economic Ope s able to account for such Tesoj Property and itis only thereafter the burden shifts to the accused, his innocence; M. Krishna Reddy v. State, Deputy Superinte, a of Police, Hyderabad, AIR 1993 SC 313. : ‘Thus, possession of assets becomes an offence only when they b Servant fails to satisfactorily account for the same. The public Servant hy to prove that assets have been acquired through legal sources of nga Section 13(2) provides that a public servant who commits cr), misconduct shall be punishable with imprisonment fora term which shal be between four years to ten years and shall also be liable to fine! 1" 22. Criminal Breach of Trust under Section 1 3(I)(a) of Prevention of Corruption Act, 1988 and Section 409 Of the Indian Penal Code, 1960 al capacity, he is guilty ofcrimina din this clause is analogous to th: ‘enal Code. However, whereas commits the criminal breach of trust hi Prevention of Corruption Act, misappropriates or allows any oth ‘er person to misappropriate prope entrusted to him in his official Capacity. Another difference bet two sections is that while under section 409 of, the Indian Penal Code, minimum punishr ment is prescribed and the maxim jum punishment may imprisonment for life orimprisonment which may extend to 10 yea | ' mninimum punishment under section 13 of the Prevention of Commup ; Act is 4 years and the maximum 10 years, in cases which fall bothul section 409 of Indian Penal Code and under clause (a) of section 13@) Prevention of Corruption Act, prosecuting agency may charge the pi servant under the Indian Penal Code or under the Prevention of Com Actas it may consider appropriate in each case. a Incases in which the alleged offence falls both under ( the Indian Penal Code and under section 13(1)(a) of the Corruption Act and in which a public servant is orru} ( ° tio” of Corruption Act, 1988 y ecomuptionActonly, the question ms a me gis charge the public servant could bet is Whether pe india penal Code. The Supreme Court i io Fe v eerashwar Rao) has held that there pate of Madhya a Ay ition under section 409 of Indian Pengeto objection: ’ j ms peen acquitted of an offence under section ae : Pe of commuption Act 1987 [analogoustoseson130\@)fihe A) of euch 1988]- peng OA" singh h Kanwarjit Singh Kakkar v. State of Punjab (2011) 6 SCR 895 : facts: The appellants (Dt. Kanwarjit Singh Kakkar and Dr. Rajinder La chawla) were medical officers working with the State Government ipod. Acomplaint was filed against the appellants alleging that both Ipdoctors were doing private practice in the evening and charged Rs. ijincash pet patient as prescription fee. According to complainant, as ite government instructions, the government doctors are not _ pdage any fee from the patients for checking them as the same was tothe government instructions. In view of this allegation, araid mnducted at the premises of both these doctors and they werenabbed - tigprivate practice and receiving Rs. 100as consultation charges from | tnnplainant. On the basis of this, the FIR was registered againstthe -ylants under section 13(1)(a) read with section 13(2) ofthe PCAct tinder section 168 of Indian Penal Code. 2 : ct light of the above facts, the appellants approached the High fo quash the FIR under section 482 of CrP.C. contending that ne hon made out from the allegations in Pat Xen; which was unde! vation andred Perit under reno x . sin grounds, the appellantiust scribbled “— Pippclant i es, t Which does not even beat the sign4 also contended on behalfofapP© nee : 6. Socio-Econom; ic prohibiting government doctor from doi and the appellants could be alleged to have Mei i : ang ; only ifthey have deviated from therules laid down bye Private et in this regard. In the alternative, it was contended tae deviation from these rules prohibiting private practio even doctors contrary to the government instructions, it cout ee by of departmental proceeding and the punishment under sue ee Services (Punishment and Appeal) Rules and not under Pc ( under the Prevention of Corruption Act. However, the Hi; of Cound i to quash the proceedings against the appellants, The High Comat 6 the rule 15 of the Punjab Civil Medical (State Service Class 1972. As per rule 15 of the said Rules, the Govemment mayb eal & special order permit any member of the Service to engage in private ay onsuch terms and conditions and subject to such restrictions and limitat; as may be specified in the order provided that such practice does notin any way interfere with the discharge of his or their official duties. Thereafie, a Special Leave petition was filed before Supreme Court under Artic, 136 of the Constitution. 7 Inthe Supreme, Court, it was argued on behalf of the appellant: section 7 of the Prevention of Corruption Act explains ‘corruption’ acceptance or ‘demand’ illegal gratification for doing any: official act. The demand/receipt of ‘fee’ while doing private practice is not an illegal 3 gratification for official duties. Further, even section 13()(@) ced Prevention of Corruption Act does notapply since themaini i t this section are: (a) The accused must bea public servant at the time ofthe offenct i (b) He must have used corrupt or illegal means and obtain forhimstl or for any other person any valuable or pecuniary adv. na () He must, have abused his position as a public servant and bate obtained for himself and for any other person any valuable or pecuniary advantage; or (d) While holding such office he must have obtained forany it person any valuable thing or pecuniary advantage witha ; motive. s Fe ' Further, by way of rejoinder, the appellants contended or ‘departmental rules’ which bar private practice by a governme®! prevention of Corruption Act, 1988 «nif any, is liable to be initi : - tion ifany, 1s initiated/taken : hin the resent Cae atthe Pana hl Ser eal) Rules. Rule 15 of the Punjab Civil Medi 1 (Stat: ples, 1972 states that a goverment doctor may ee ior permission from the government. eRe 3 ther the counsel for the appellants also took assistance fi | ey Government Vigilance Department, which vide Memo No. 53/ ) "ip.54/20094 dated 23.12.2004(T) instructed the Chief Director, 16 ureau, Punjab, Chandigarh on 19.1.2005 that the cases tance B wenn the government teachers for holding tuition classes should be apis wae ” awnas these cases do not come within the purview of the Prevention fcorruption Actas fees demanded/accepted by a teacher in view of teaching private tuition classes can neither be termedascorruptionnor gnitbe said to be a demand for remuneration for some official act. It was aibmitted by the appellant that this principle needs to be applied on all pofessionals on the basis of principle of equity. : Onthe other hand, it was argued by the respondents that the provisions ofPrevention of Corruption Act clearly apply as the government doctors inthe State of Punjab have been specifically prohibited to carry private i mactice under the departmental rules and as such the act of the appellants i wereillegal. | tbebooked within the ambit and purview of the Prevention of Comuption torunder Indian Penal Code, or the same would amount to misconduct Jats Punjab Civil Medical (State Service Class) Rules, 1972 under Decision: (i) The Supreme Court observed that on critical analysis of ~ feces advanced, inthe light ofthe definition of ‘eomuption’ defined got A evention of Corruption Actin its Preamble and under section (Alege

    You might also like