Discuss Provisions of The Prevention of Corruption Act.

What was the outcome of Antulay

Case?

Answer

“If we cannot make India corruption-free, then the vision of making the nation develop by
2020 would remain as a dream.” – Dr. A.P.J.Abdul Kalam

Introduction

The word “corruption” derives from the Latin term “corrupts,” which means “corrupted.”
Corruption is defined as dishonest or deceptive behaviour by those in positions of power,
such as government officials or other administrators. The desire for illicit profits, greed for
money, and the prevention of furthering any wrongdoing are the main reasons why people
engage in corruption so regularly. Giving or receiving inappropriate gifts and bribes, under-
the-table payments, money laundering, and black money, meddling with elections, and
defrauding investors are all examples of corruption.

Provisions of the Corruption Act

The Prevention of corruption act incorporates the Prevention of Corruption Act of 1947, the
Criminal Law Amendment Act of 1952, and Sections 161 to 165-A of the Indian Penal Code,
with minor changes. The Prevention of Corruption Act, 1988, safeguards the rights of
individuals and aims to prevent the coercive practice of demanding substantial payments
from citizens by government officials in exchange for completing official tasks. The Act
criminalises ‘corrupt’ activities like as bribery, misappropriation, acquiring a monetary
advantage, possessing assets disproportionate to income, and so on. It has broadened the
scope of definitions such as “public duty” and “public servant” under Section 2 of the act’s
defining clause. The burden of proof is moved from the prosecution to the accused who is
charged with the offence. The terms of the Act stipulate unequivocally that the investigation
must be conducted by an officer with a rank no lower than that of Deputy Superintendent of
Police.

Key provisions of the POCA are described as follows:

Section 2 of the Prevention of Corruption Act includes several important definitions that help
clarify the scope and application of the Act. The two most important definitions defined in the
Act include, ‘public duty’ and public servant’.

Public duty means “a duty in the discharge of which the State, the public or the community at
large has an interest.”

The Act means a public servant as an individual who works for the state and whose main duty
is associated with the welfare of the public and society. The duties include providing service
to the public in the form of protection, administration, or maintenance for eg. A judge, an
arbitrator, election in charge, officer of government bodies, etc.

Other definitions including election, prescribed, undue advantage gratification, and legal
remuneration are also defined in this Section for clarity and removal of ambiguity.

The Delhi High Court in the case of Bhupinder Singh Sikka vs CBI, (2011) found that an
employee of an insurance company established by an Act of Parliament was inherently a
public servant and that no evidence was necessary in this regard.

Appointment of Special Judges

The appointment of special judges is an important aspect of ensuring the effective

adjudication of corruption cases. The Act recognizes the need for expeditious disposal of
corruption cases and establishes special courts or designates specific judges to hear such
cases. Under Section 3 of the Act The Central Government or the State Government may, by
notification in the Official Gazette, appoint as many special Judges as may be necessary for
such area or areas or for such case or group of cases as may be specified in the notification to
try the offences such as offence punishable under this Act; and any conspiracy to commit or
any attempt to commit or any abetment of any of the offences specified. The Act also
highlights that “A person shall not be qualified for appointment as a special Judge under this
Act unless he is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant
Sessions Judge under the Code of Criminal Procedure,” as mentioned in Section 3(2) of the
Act.

Offences and Penalties under the Prevention of Corruption Act, 1988

Offenses and penalties under the Prevention of Corruption Act, 1988 are outlined in various
sections of the Act. Here are some of the key offenses and their corresponding sections:

Section 7: ‘Offence relating to public servant being bribed’

Penalty: Imprisonment for a term not less than three years, which may extend to seven years
and a fine.

Section 8: ‘Offence relating to bribing of a public servant’

Penalty: Imprisonment for a term which may extend to seven years or with a fine or both.

Section 9: ‘Offence relating to bribing a public servant by a commercial organization’

Penalty: If a person in charge of a commercial organization committing an offence under

Section 9 of the Act is found to be guilty then the offender shall be “punishable with
imprisonment for a term which shall not be less than three years but which may extend to
seven years and shall also be liable to fine,” as mentioned in Section 10 of the Act.

Section 11: ‘Public servant obtaining [undue advantage], without consideration from person
concerned in proceeding or business transacted by such public servant’

Penalty: Imprisonment for a term not less than six months, which may extend to five years,
and a fine.

Section 13: ‘Criminal misconduct by a public servant’

Penalty: Imprisonment for a term not less than four years, which may extend to ten years,
and a fine.

Apart from this, Section 12 of the Act, states that “Whoever abets any offence punishable
under this Act, whether or not that offence is committed in consequence of that abetment,
shall be punishable with imprisonment for a term which shall not be less than three years, but
which may extend to seven years and shall also be liable to fine.” Also, in Section 14 of the
Prevention of Corruption Act, 1988, habitual offenders are punished with imprisonment for a
term not less than 5 years, which may extend to 10 years, and are liable to fine.

Investigations

Investigation of corruption cases is done by a police officer, Section 17 of the Prevention of

Corruption Act, 1988, illustrates powers authorized to investigate the cases. It states that “no
police officer below the rank, (a) in the case of the Delhi Special Police Establishment, of an
Inspector of Police; (b) in the metropolitan areas of Bombay, Calcutta, Madras, and
Ahmedabad and in any other metropolitan area…, of an Assistant Commissioner of Police;
and (c) elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank,
shall investigate any offence punishable under this Act without the order of a Metropolitan
Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor
without a warrant.”

The higher rank officials including the Central Bureau of Investigation (CBI), state Anti-
Corruption Bureaus (ACBs), and Vigilance Departments investigate corruption cases. These
agencies possess wide-ranging powers, such as search and seizure, interception of
communications, and the authority to arrest individuals suspected of corrupt practices.

Apart from this, there are certain restrictions related to the investigation in some cases which
are mentioned under Section 17A of the Amendment Act, 2018. It illustrates that no police
officer can investigate the case if it involves a decision/recommendation made by a public
servant in the course of his official responsibilities. If such an investigation is to be performed
then the approval of the Central Government involving Union matters and State Government
involving state affairs is required.

The Supreme Court ruled in the case of Parkash Singh Badal And Anr vs State Of Punjab
And Ors, (2006) that if a public servant received compensation for persuading another public
servant to perform or refrain from performing any official act, he would be subject to the
provisions of Sections 8 and 9 of the Prevention of Corruption Act. In the same case, the
Supreme Court determined that satisfaction might be of any form for Sections 8 and 9,
indicating that the scope of their applicability was broad. In this instance, the Court was
investigating the relationship between offences under Sections 8 and 9 and Section 13(1)(d)
on the one hand.

Attachment of Property

Section 17C of the Act empowers authorities to take action to prevent the disposal or transfer
of properties that are suspected to be proceeds of corruption or linked to corrupt practices.
This includes assets acquired through illegal gratification or disproportionate to the known
sources of income.

Forfeiture of Property

According to Section 18A of the Prevention of Corruption Act, 1988, the attachment and
forfeiture of property is performed under the provisions of the Criminal Law Amendment
Ordinance, 1944. In context with this Act, the references to ‘District Judge’ in the Criminal
Law Amendment Ordinance, 1944 are construed as references to ‘Special Judge’.

Conclusion

Corruption is a cancer that is eating away at the core of our society, stifling not only
individual growth but also the collective development of our country. The Prevention of
Corruption Act of 1988 is essential anti-corruption legislation. However, legislation alone
will not win the war against corruption; it is the conduct of our legislators that will give us an
advantage in combating this scourge. It is facing complaints from legal luminaries as a result
of the new revisions, but this should be avoided, and legislators should seek to uncover the
gaps in the laws and make it as faultless as possible.
Outcome of Antulay Case

CASE NAME – A. R. Antulay v. R. S. Nayak

CITATION – AIR 1988 SC 1531

DECIDED ON – 29 April 1988.

CORAM – Sabyasachi Mukherjee, G. L. Oza, M. N. Venkatachaliah, Ranganath Misra, JJ.,

B. C. Ray, S. Natarajan, S. Ranganathan

PETITIONER – A. R. Antulay

RESPONDENT – R. S. Nayak

PROVISIONS INVOLVED – Sections 374, 406 & 407 of Criminal Procedure Code, 1973;
Section 161- 165 of the Indian Penal Code, 1860; Articles 13, 14, 21, 32, 134, 136, 139, 141,
142 of the Constitution of India.

INTRODUCTION

The case was a landmark judgment as it stated the corruption cases that are triable by a
special judge, cannot be transferred to a High Court judge for a hearing. After the judgment
of this case, many legal academics pointed out how the legal system of India is restricted by
the limitations of human foresight. In the famous Sahara’s case, the court stated this case to
be of irrelevant precedent and the judgment must be cited as a precedent, only when confined
to the facts and circumstances of the cases.

FACTS IN BRIEF

A.R. Antulay, the petitioner, was the Chief Minister of Maharashtra since June 1980. On
September 1, 1981, a member of the Bharatiya Janata Party approached the Governor of
Maharashtra under Section 197 of the Criminal Procedure Code, 1973 and Section 6 of the
Prevention of Corruption Act, 1947, requesting the approval to bring a suit against the
minister. R. S. Nayak, the respondent, also filed a complaint to the Additional Metropolitan
Magistrate, Bombay against the appellant and others for offenses under Section 161, 165,
384, and 420 read with Sections 109 and 120 B of the Indian Penal Code, 1860 and Section 5
of the Prevention of the Corruption Act, 1947. The Magistrate did not accept the notice
without the approval for prosecution. A revision was filed in the Bombay High Court. The
allegations against A. R. Antulay regarding abuse of power and after the judgment released
by the Bombay High Court led to him resigning his position as Chief Minister of Maharashtra
in 1982.

A new complaint was filed before the Special Judge, P. S. Bhutta, with more accusations
including those rejected by the Governor. The Judge issued a process to the petitioner without
depending on the sanction order given by the Governor. On 28th October 1982, Judge Bhutta
dismissed the appellant’s objection about the jurisdiction and ordered for three Special Judges
of that area to hear such cases. The State Government appointed R. B. Sule as a Special
Judge. The Special judge discharged the petitioner stating that a Member of the Legislative
Assembly (MLA) is a Public Servant and there was no valid sanction to bring legal
proceedings against him.

On February 16, 1984, an appeal was filed under Article 136 of the Constitution and the
bench of the Apex Court held that the MLA is not a public servant and revoked the previous
order of the Special Judge. Instead of returning the case to a Special judge for disposing of it
as per the law, the Supreme Court suo moto withdrew the special case from the court of a
Special judge and assigned it to the Bombay High Court.

ISSUES RAISED

1. Whether the directions that were given by the honourable Court in February 1984,
breach Section 7 (1) of the Criminal Law (Amendment) Act, 1952?

2. Whether the decision is violative of Articles 14 and 21 of the Indian Constitution?

ARGUMENTS RAISED FROM THE SIDE OF THE PETITIONER

1. The appellant Counsel stated that the petitioner was not treated equally and was not
given the opportunity for any arguments to be submitted before the Court of law
which is violating his Fundamental Right mentioned under Article 14 of the
Constitution.

2. The petitioner pointed out his Fundamental right to trial by a Special Judge as per
Article 21 of the Constitution.

3. The party brought up that the basics of the administration of justice i.e., no man
should suffer because of court and no man should suffer a wrong due to the technical
procedure of irregularity, was breached.
 4. It was also pointed out by the petitioner that he has lost two major Rights, namely, the
Right of Revision to the High Court under Section 9 Criminal Law Amendment Act,
1952 and the Right to Move the Supreme Court under Article 136 of the Constitution.

ARGUMENTS RAISED FROM THE SIDE OF THE RESPONDENT

• The respondent argued that the withdrawal of the case from Special Judge as per the
Criminal Law Amendment Act, 1952, by the Bombay High Court under Section 407
of the Criminal Procedure Code, 1973, was possible under appropriate situations.

• The respondent Counsel stated that the transfer of the case was announced without
allowing the petitioner an opportunity to present his pleadings, which is not
appropriate. The plaintiff before the order was signed or after the directions were
given could have submitted his allegations through his counsel. Thus, it is not illegal,
and the petitioner is the one who did not use the opportunity.

• They stated that the superior court did have the jurisdiction. The court cannot be made
liable for such claims unless it has acted coram non judice.

ANALYSIS OF THE JUDGMENT

The seven-judge bench was given a verdict in favour of the appellant in a 4:3 proportion. It
was said that the judgment released in 1984 was unjust, illegal and unconstitutional as per
Article 21 of the Indian Constitution since the appellant’s right to use appellate remedy
was restricted. The court declared that the transfer of criminal cases and the Apex Court to
transfer cases and appeals are given under Section 406 of CrPC. The law states that the court
may direct any specific case or appeal from one High Court to another High Court or from a
subordinate Criminal Court to a High Court or a subordinate Criminal Court to one High
Court to another Criminal Court of equal or upper-level jurisdiction to another High Court.
Section 407 of the CrPC deals with the power of the High Court to transfer cases.

Section 6 of the Criminal Law (Amendment) Act, 1952 states that the State Government may
appoint as many Special Judges as needed for a particular area for a specified offence.
Section 7 of the Act focuses on the triable by Special Judges. The question here is whether
the transfer made by the Court is valid or not. Section 7 (1) of the Act states a condition for
the trial of offenders as per Section 6 (1) of the Act. It means that the offences under Section
6 (1) of the Act are punishable under the IPC and Prevention of Corruption Act, 1947. Hence,
the order of the court to transfer cases to the high court is not permitted by law. The Apex
Court through its directions cannot advise the High Court to take cases that are not under its
jurisdiction.

The Apex Court evidently does not have the jurisdiction to transfer cases to itself. Only the
Parliament by law has the power to create or increase such jurisdiction power and no other
superior or inferior Court has that power. In this case, the petitioner has been treated
differently from other wrongdoers. He has the right to be not separated to use the special
court for his purpose. All these come under Article 14 of the Constitution, i.e., the Right to
Equality. The petitioner has the right to take a trial by a Special Judge under Section 7(1) of
the Criminal Law (Amendment) Act, 1952 which was established by law and the petitioner
has the right to not suffer because of any order passed by the Court in violation of natural
justice as per Article 21 of the Constitution.

A particular clause of a specific regulation is given for trial by a Special Judge alone and the
transfer of such cases can be done by one judge to another special judge. The High Court
does not have the power to transfer such cases as per Section 6 of the Criminal Law
(Amendment) Act, 1952. Thus, it is evident that the provision under Section 7 (2) Criminal
Law (Amendment) Act, 1952, and Article 14 and 21 of the Constitution have been breached
and legally wrong as per the directions given by the Court.