case study on prevention of corruption act

[Ethics] Enquries: Preliminary, Discreet, Regular; Prevention of Corruption Act features, Investigation & case studies

Preliminary enquiry, no protection to accused, resignation during prelim enquiry, bogus complaints, discreet enquiry, discreet enquiry of all india services members(ais), regular enquiry, surprise checks, special judges, who can investigate, types of offenses, cogni vs. non-cogni, bailable-non bailable, fir in corruption cases:, investigation: provisions and safeguards, accomplice, immunity and pardon, supreme court on prevention of corruption act, case study: bogus sarkari hospital.

So far, we’ve seen

Conduct Rules
sources of complaints (about misconduct / corruption)

Now time for different types of enquires and investigation and the prevention of corruption Act.

Suppose case study runs on following theme:

An NGO/Reporter/Citizen comes in Collector DevAnand’s Office and complaint how Tehsildar Prem Chopra is stalling a file/work for the want of bribes……What should DevAnand do?

so what is this preliminary enquiry and how is it different from regular departmental inquiry?

What is a preliminary enquiry?

Preliminary enquiry is a fact-finding enquiry.
done by the Administrative authority (e.g. head of office, head of department- or any subordinate officer under their order)
Done to ascertain a complaint/allegation made against a government employee. Because if departmental inquiry is started based on a fake complaint- it creates embarrassment for honest employee and destroys staff morale.
Preliminary enquiry is not regular inquiry under the disciplinary rules. It is merely a ‘tool’ to help the boss decide follow up action.
Therefore, Art.311 or the principles of natural justice DONOT apply to a preliminary enquiry. (Meaning accused employee doesn’t have the right to defend himself or cross-examine the witnesses etc.)
It is not necessary for boss to seek explanation of accused employee at this stage-Especially when there is sufficient prima facie material to prove his mischief.
Accused employee has no right to be heard at this stage. Boss can decide future course of action behind his back.
Preliminary enquiry is not a precondition for taking disciplinary action. (Boss can directly start disciplinary action – if there is prima facie material.)
There is no prescribed procedure for conducting preliminary enquiry. Boss can follow suitable procedure as he sees fit. He may do it orally, he may do it in writing. He may do it by himself, he may ask his junior to gather facts for him and so on.
If complaint is made against a senior officer than preliminary enquiry should be done by an officer of sufficiently higher status.
In complaints related to quality / completion of “work” e.g. MNREGA, IAY, PWD, roads, buildings, irrigation, NGO projects etc. the Enquiry Officer should make surprise site inspection to verify the facts on the spot. But he should not disturb the evidences or disclose real purpose of his visit to local staff.
During the course of enquiry, if officer feels that it is necessary to collect evidence from non-official persons (e.g. banker, contractor, CA, share-broker, property dealer etc.) then further work should be entrusted to ACB/CBI via Vigilance Department.
If preliminary enquiry is ongoing but accused employee tenders resignation- it should not normally be accepted. Why? Because resignation =eligible for future employment to government, pension- gratuity benefits
But what if he did some mischief so grave that he could be dismissed and be removed of all retirement/pension related benefits!
Therefore, accused employee should not be allowed to escape easily by resigning.
Genuine complainants should be given protection against harassment or victimization. (i.e. by transferring/ suspending the accused employee +/- protecting the identity of victim/witnesses as and where necessary)
But if complaint turns out to be false and malicious after preliminary enquiry then criminal prosecution should be launched against such complainants- to deter other miscreants and to boost the staff morale.
Indian Penal Code (IPC): a person making a false complaint = 6 months / fine / both (section 182)
CBI/ACB has received a complaint but they donot have sufficient material to register a regular case/FIR. They start discreet enquiry.
A Discreet Enquiry is exploratory in nature, conducted with utmost secrecy.
Suspect employee is not approached directly.
Instead, the investigating officer approaches his juniors, seniors, colleagues, neighbors, social contacts etc.
He doesn’t record their statements officially. He camouflages the purpose of meeting e.g. CBI officer contacting chowkidar of the farmhouse, in disguise of a real-estate agent and inquiring about property owner.
He also verifies the general reputation/lifestyle of the accused employee.

Outcome of Discreet Enquiry?

if complaint/allegation/tip turns out to be fake => discarded OR
If still need to collect more material=> start Regular (Formal) inquiry.
If substantial material gathered=>FIR is registered under prevention of corruption act. (PCA)

In case of All India service member (IAS, IPS, IFoS) serving in State: – if discreet enquiry finds something fishy, then:

ACB sends report to Vigilance commission
GAD/Personnel for IAS
Home affairs for IPS
Environment and Forest for IFoS
After that Vigilance commissioner may (or may not) authorize the ACB to conduct a formal enquiry / register an FIR under Prevention of Corruption Act against that All India service (AIS) officer.

^this is the mechanism in Andhra Pradesh. Other states may have some differences in the technicalities.

CBI also needs to follow similar action while investigating AIS officers on deputation to central ministries/departments.
As you can see this mechanism is meant to protect the honest officer, but often becomes an obstacle to deal with even guilty AIS officers.
The secretaries don’t clear the files immediately, empires within empires, have a feudal mindset to protect their underlings= matter kept pending for months and in the meantime guilty Officers get the opportunity to temper witness/records/evidences.
Regular Enquiry is an open enquiry (unlike the Discreet Enquiry)
A Regular Enquiry is taken up depending on the nature of allegation, the material available and other factors.
Regular Enquiry may become necessary where ACB/CBI wants to explore the complaint on a firmer ground before lodging FIR and taking up regular investigation.
Here the investigating officer can directly and openly approach witnesses and accused employee.
ACB/CBI can carry out surprise checks of offices known for rampant corruption. (Depending on their jurisdiction.)
revenue- earning offices: sale tax, excise, octroi related checkposts
expenditure- incurring offices: pension, treasury, accounts office
Focal points with direct public contact: e.g. tehsildar, patwari, RTO, passport, social welfare etc.
preventing the malpractices
Punishing the guilty.

Salient Aspects / Principles:

Also checks that no official has engaged a private person to perform official functions. e.g. in RTO office, passport office, tehsildar’s office- often you see dalal type elements doing all the filing, inspection work and the sahib merely signs the file without even looking at its contents or at your face. This type of Outsourcing=violation of conduct rules.
In certain offices (e.g. Treasury/excise/pension), the employee has to declare his personal cash in the office register every day. ACB/CBI would verify the cash possessed by employee with reference to cash declared by them in morning. If there is mismatch= means he took bribe or stole money from office.
Care should be taken that very few know about it, else someone might leak information to the given office and corrupt employees will become cautious.
Usually Two independent public servants (from third Department) are kept as ‘mediators’ during the check. (To ensure that neither side plays mischief.)
Sometimes joint surprise checks are done with help of local police and senior officers of the given department.
Should be done in Remote areas- faraway tehsils as well.

Ok so far, under Ethics/Vigilance:

We learned about the preliminary enquiry (to be done by administrative authority / departmental officer)
We learned about discreet and regular enquiry (to be done by CBI, ACB officers)
These enquiries were mostly informal in nature.

Now time for (formal) investigation. But before that, need to look at Prevention of corruption act (PCA). Because formal investigation starts when FIR is registered under PCA.

Prevention of Corruption Act (PCA), 1988

Applies to whole India except J/K
Even applies to all India citizen living outside India.

Following public servants are covered

Employees of union, state, local authority, PSU and statutory boards.
election commission and its employees
Public service commission: its chairman, members and employees.
Any PSU, company, statutory body, cooperative society, educational, cultural, scientific institution funded by Union/State government.
Employees of SC, HC, various tribunals.
Govt. universities: Vice-Chancellor, registrar, Professor, reader, lecturer and office employees
PCA act doesn’t apply to following forces: army, navy, airforce, BSF, coast guard and NSG

Overall, the Vigilance jurisdiction is:

PCA Act empowers both union and state governments to appoint special judges for anti-corruption.

Ok but what is so ‘special’ about this ‘special’ judge?

He can order summary trial in certain situations. Summary trial means no need for detailed examinations of witness/evidences before punishing the accused.=> quick justice, no more “taarikh pe taarikh”
He can grant immunity/pardon/leniency to bribe-giver or the accomplice for their testimony.

Limitations of “Special” Judge:

Against a state / central employee, he cannot take cognizance without previous sanction from respective government.
Doesn’t apply to army, navy, airforce, BSF, coast guard and NSG.

Punishments under PCA

With respect to PCA Act, following officers can investigate crime AND can arrest people without warrant from magistrate.

CBI inspector (Delhi Special Police Establishment)
Assistant Commissioner of Police (ACP)- in metropolitan areas under police commissioner. e.g. Mumbai, Chennai, A’bad etc.
Dy.SP (Deputy Superintendent of Police) in remaining areas.
Any other officers empowered by state government (e.g. Anti-corruption bureau/ ACB)

Speaking of warrants….

Just a brief overview for educational/public-awareness purpose:

What about bribes?

You can read more about all the offenses and their classification here: vakilbabu.com/laws/Classify/Classify.htm

Anyways back to the topic: we’re seeing the prevention of corruption act. we saw its applicability, the special judge, the investigating officers – now time for actual investigation

(Formal) Investigation

During investigation, Police/CBI/ACB officer has to follow the Criminal Procedure Code (Cr.PC).
Investigation is collection of facts to identify the guilty.
Investigation is a probing from the known to the unknown backward in time.
First Information Report- given by the victim / someone who has come to know about any crime.
But what if there is no victim? e.g. contractor voluntarily gives bribe, engineer voluntarily accepts bribe and neither party comes to complaint! In such cases, ACB officer himself can registered an FIR, naming ‘State: ACB’ as the complainant. (CBI can do similar in the corruption cases related to Union ministries/Department/PSUs)
Complainant has right to get FIR copy free of cost.
full name of the accused
age, occupation, place of residence,
The offense: time, data, description, motives, properties involved if any.
If accused employee’s name is unknown, his description should be given.

BTW, it is necessary for CBI/ACB to register FIR before laying traps for catching bribe givers/taker. we’ll see more of that under Trap related article later.

(With respect to Prevention of Corruption Act)

Investigating officer can take any possible evidence/parcel from postal / telecom Department.
Can demand bank or public offices to show him required documents or books. But should not cause unnecessary hardship or dislocation of work to their office personnel.
Can attach money or other property acquired via corruption.
Investigating Officer has power to require any person to appear before him.
Cannot ask a boy/girl below 15 years to come to police station. He can only ask them question at their residence.
Can examine the accused public servant. It serves a dual purpose; it may clarify certain aspects and indicate his likely defense in court.
But cannot compel the accused public servant to be a witness against himself. Art. 20(3) of the Constitution.
Cannot compel a government servant to disclose information protected under Official secrets Act.
Investigating Officer can get statements recorded by competent magistrate.
Investigating Officer can hold an identification parade.
Public is legally bound to give corruption related information to nearest magistrate / police officer.
Three hall marks of investigator= industry, integrity and impartiality.
Investigating Officer has to maintain a diary of investigation day-to-day.
Court may order him to produce this diary during trial not as evidence, but to aid it, in the trial.
Accused public servant is not entitled to see case diary. Unless the officer uses them to refresh his memory or the Court uses them for contradicting the Investigating officer.
Accomplice= Person who joins/helps another person to carry out some mischief.
An accomplice in corruption case can turn into an approver and testify against the main corrupt public servant. This helps in speedy conclusion of trial / proving cases where no other evidence is available.
In such situation- the investigating officer can approach vigilance commissioner to get ‘immunity’ to that approver (so he is not punished for violation of conduct rules, despite testifying about his misconduct in the court by himself)- or atleast given some leniency.
Similarly investigating officer can also approach that ‘special’ judge to grant pardon to the approver (so he is not punished for violation of PCA)- or atleast given any leniency.
Immunity /pardon is not given in every case. It is given only where offense is serious and it is difficult to win court-case without the testimony of the accomplice/approver.
Prevention of Corruption Act was intended to make effective provision for the prevention of bribery and corruption rampant amongst the public servants.
It is a social legislation defined to curb illegal activities of the public servants and is designed to be liberally construed so as to advance its object.
The overall public interest and the social object is required to be kept in mind while interpreting various provisions of this Act and deciding cases under it.
Supreme Court held that procedural delays and technicalities of law should not be permitted to defeat the object sought to be achieved by this Act.
Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape.
Miscarriage of justice arises from the acquittal of the guilty, no less than from the conviction of the innocent.

Recall that case study in UPSC’s official sample paper for ethics: medical superintendent of a district level government hospital…..he has been receiving repeated complaints particularly from the patients.

First step is classify the complaints according to their angle and then decide what to do?

Complaint 1: Very poor maintenance and un-hygienic conditions in hospital premises.

Administrative angle:

Preliminary enquiry=>find guilty staff, supervisors and impose minor penalties for their negligence in duty.
Make daily rounds in hospital just to keep them scarred and busy.
If budget permits, install biometric system to monitor attendance.

Complaint 2: The hospital staff frequently demanding bribes from the patients for the services rendered.

Vigilance angle:

Setup big display boards, informing the visitors about contact numbers of ACB office/vigilance division, if anyone demands bribes.
Raise matter with Vigilance division in state health department. Request them to conduct surprise check/raid/trap for bribes and disproportionate assets with help of ACB.
Special Court will punish them as per the provisions of Prevention of Corruption Act. But in the meantime suspend=> disciplinary action ( as we saw in first article about conduct rules- double jeopardy doesn’t apply.)
+Make daily rounds in hospital just to keep the crook employees scarred and busy.

Complaint 3: The negligent attitude of the Doctors resulting in casualties.

Criminal Angle:

Preliminary enquiry=> FIR =>suspend=>disciplinary proceedings + criminal proceedings=>punishment.
make daily rounds in hospital just to keep the crook doctors scarred and busy

Complaint 4: Siphoning of a substantial stock of medicine by the staff and selling it out.

Criminal/Vigilance angle:

Misappropriation. Forward complaint to vigilance division =ACB.
ACB will make inquiry=> FIR => investigate=>prosecute under prevention of corruption act (and even IPC for theft).
+suspend everyone who gets arrested and take disciplinary action.

Administrate angle:

Make surprise check on store house etc. and (if budget permits)

Install CCTV cameras.
Install computerized inventory system with barcodes to keep daily track of stock.

Complaint 5: Strong nexus between the senior Doctors of the hospital and the owners of local private nursing homes and testing labs as a result of which the patients are strongly misled and dissuaded from availing the hospital facilities and rather compelled to purchase costly medicines from market and get medical tests and even operations done from private medical houses.

Setup big posters showing the “ Citizen Charter” – informing the visitors about facilities available in the hospital, Administrative charges and contact numbers of important officials, local ACB and vigilance division.
Raise matter to Vigilance division in state health department. Request surprise check on disproportionate assets of notorious doctors with help of ACB.(Because if doctors have such nexus- most likely they’ve made lakhs and cores of rupees in commission.)
As they’re being prosecuted under prevention of corruption act=>suspend=>disciplinary action.

Make daily rounds in hospitals, talk with patients and their relatives, ensure them about the facilities available in hospital + just to keep the crook employees scarred and busy.

Complaint 6: There also exist a notorious employee union which puts undue pressure and resents any reformative step by the administration.

Union problem will not be solved in a day or in a week.
First fix previous problems => crook employees will face court proceedings / departmental proceedings.
Then other arrogant employees/doctors will amend their ways, will learn to remain in their ‘ aukaat’ .
The grip and nuisance of union will thus decrease automatically over the time.
+ Confidence building exercise, employee rating/reward/consultation programs etc. fancy things.

You’re welcome to post more points about this case study in the comments below.

In the next article, we’ll see about the traps in bribery cases.

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23 comments.

thank you sir:)

One of the very best case study/analysis ………

I am not into UPSC / Banking or any other Govt Job Search. I am a Professional. I read your articles for my knowledge purpose. I personally believe that you should be given HONORARY UPSC PASS CERTIFICATE.

Keep writing. Gr8 Compilation and Explanation Power.

Gandhi ji never got peace nobel.. but whoever gets it says that he/she was inspired by Gandhi ji

thank u mrunal……

Good analysis Mrunal, Kudos for all your efforts must read for mains -2013

mind blowing job…

mrunal, ur answers hv lot of scope of improvement. Pls refer S K Mishra sirs notes/classes, his mentality etc to write superior answers. or thinking of any Retired IAS. u r doing gr8 job, hence bothered to write this. Keep it up!!

is this mr. s k mishra , the great ?????

i am.. i bothered to write… :)

Regarding employee union –

Employee union is not always a bad thing , it is there to protect any arbitraty executive action against employee.but if it turns notorious and creat day to hurdle then it is not desirable. Caution must be taken in handling because their are chances of backfire. Two way sttategy must be adopted 1. Talking ro employee in open manner , listening their genuine problem and try to solve it in participatry manner and cordinating with them in emphatetic manner. Try to communicate and develop some informal relation with employee so that they don’t consider you alien.

2. Make it very clear that any thing against organisatiinal goal is not desirable and will not be entertained. Any mischeive will be dealt with reasonable action and no partiality or favor will be done in dealing with it. at a same time encourage employee by giving recognition and reward for their good performance. After all we have to work as a team and meet the excellency in our performance. Positive and healthy enviroment can solve much of problem.

just awesome

The presentation of the topics are excellent………………………….

Looking at the solutions to each sub cases sequentially, I felt there was too much attention given to the punishment angle and little scope to the reform angle. The higher official whomsoever is trying to correct the system must have a positive faith towards the system. Nowhere in the solution there was a mention of a meeting or taking the views of the subordinates(of those some may be having some genuine issues making them difficult to adhere to their duties). The higher official must not only address the problems of the clients but also should maintain the positive morale of the employees in the organisation.

The hospital case study is not hypothetical by the way, it a reality. Mrunal sir solved it in 5 minutes and our great collector doesn’t even bother to know what the hell is going on in those damn hospitals. Here (Hisar, one of the advanced districts in Haryana) deliveries have taken place in the civil hospital toilet because the staff says no beds available, keep the patients hanging for so long that labor pains start and then the the patient’s family have no closed place other than the toilet. Humanity gets disgraced. I feel criminal proceedings can be started against the hospital staff for such grave neglect of duty but in incredible India no action is taken, and the tragedy keeps repeating.

regarding reforms, there are many associations for eg, routine train travellers association,routine bus users association are there in our society with some rights or more of whistleblowing activity who can ensure q&q of their service.but in case of hospitals can u think of such routine users thing. yes we can there are many senior citizens who avail drugs for NCD’s among whom we can seed the spirit and strength of association. we could believe them, against frivolous complaints ,on their seniority.

127,4th main, anam enclave,Thanisandra, s.k.nagar post,

I wanted to know under what authority/regulation/act/section/rules, the Director of C.B.I. under notification/administrative letter accorded permission to state lokayuktha(karnataka) for laying TRAP of central govt.employees? Whether c.b.i. is in order to direct state lokayuktha like this? According to Karnataka State Lokayuktha Act, the central govt employees/any psu owned by govt.of india does not fall under its jurisdiction for laying trap.On the basis of permission/clarification issued by c.b.i. the state lokayuktha in karnataka conducting trap & raid and thereafter transfering case to c.b.i.for further followup.Kindly clarify.

In cases of complaints of corrupt practices by a Autonomous body established by Act. Who can conduct inquiry? For example State Pharmacy Council, in whose case the Pharmacy Act requires a commission be set up for enquiry in cases of complaints. Can a officer from the Department (other than a officer from Police, Vigilance) conduct such inquiry?

Ur site /blog is very educative and good one.

can a trap can be arranged without registering fir? what is evedentiary value as it is not during investigation? pl guide

Sir please guide me about how to deal with case studies in ethics, integrity and aptitude

whether trap done by coporation vigilance wing under pc act

India Corporate Law

Expanding the net: the increasing scope of the prevention of corruption act, 1988.

Introduction

The Prevention of Corruption Act, 1988 (“ PC Act ”), was promulgated to curb corruption in the country. In particular, the PC Act serves as a consolidated body of law to prevent corruption by public servants in India. Though the PC Act came into force in 1988, recent years have seen a marked judicial and legislative inclination towards expanding the scope of the PC Act and strengthening its provisions.

For instance, in CBI v. Ramesh Gelli [1] in 2016, the Supreme Court found that the Managing Director and Executive Director of a private bank, operating under a licence, issued by the Reserve Bank of India, would be considered as a ‘public servant’ and thus would be liable under the PC Act. Subsequently, in 2018, the PC Act was amended by the legislature, expanding the scope of offences regarding commercial organisations carrying on business in India.

To cement the trend of expanding the PC Act’s scope and to ensure policy driven, transparent and responsive governance, the Supreme Court in the case of State of Gujarat v. Mansukbhai Kanjibhai Shah [2] dealt with another instance of corruption being alleged against a prima facie private individual, in the context of a Deemed University, and in doing so provided a broad interpretation of the scope of ‘ Public Servants ’ covered by the PC Act, including ‘ University ’.

Facts of the case

In this case, the Complainant, mother of a student (“ Complainant ”) studying at Sumandeep Vidyapeeth Deemed University (“ Deemed University ”), had filed a First Information Report (“ FIR ”), alleging that the trustee of the trust that had established and sponsored the Deemed University (“ the Respondent ”), in conspiracy with others (including the Respondent, and collectively hereinafter referred to as “ the Accused ”), had unlawfully demanded Rs 20 lakh, in addition to the full fees already paid, to allow the Complainant’s daughter to take her final examination. An ensuing investigation and raids uncovered multiple undated cheques in favour of the Deemed University worth over Rs 100 crore. The charge sheet filed by the authorities alleged that the Accused had violated Sections 7 [3] , 8, [4] 10, [5] 13(1)(b) [6] and 13(2) [7] of the PC Act, read with Section 109 [8] of the Indian Penal Code, 1860.

The Respondent filed an application to be discharged under Section 227 of the Code of Criminal Procedure, 1973, as per which the accused may be discharged if after hearing the accused and the prosecution, the Judge finds no sufficient ground for proceeding against the accused. However, the District and Sessions Court rejected the application, which was thereafter overturned by the High Court of Gujarat and the Respondent was discharged. The State of Gujarat ( “the Appellant” ) appealed against the High Court’s judgment to the Supreme Court.

While the evidence would have been examined during the trial, the foremost question put forth before the courts was whether the Respondent, being a trustee on the board of a ‘ deemed university ’, would be a ‘ public servant ’, covered under Section 2(c)(xi) of the PC Act.

Submissions by the parties

The counsel for the Appellant argued that the PC Act ought to be construed liberally as it is a comprehensive social legislation, aimed at preventing corruption and curbing illegal activities of public servants. Keeping in mind the public interest, mere technicalities ought not to defeat the object sought to be achieved by the PC Act.

The Appellant’s counsel further cited Modern Dental College & Research Centre v. Madhya Pradesh [9] and Janet Jeypaul v. SRM University [10] , which held that education was a welfare activity and a public function, to argue that imparting education is a public function. Additionally, in respect of the requirement that the prosecution be sanctioned beforehand by a competent authority, the Appellant argued that mere lack of any authority to sanction the prosecution cannot itself result in non-prosecution, and in any case, there is no requirement under the PC Act of having a master-servant relationship between the competent authority and the public servant. The Respondent was discharging a public duty, and there was no formal requirement in the PC Act of a positive command or even remuneration for such duty.

The Respondent’s counsel argued that the PC Act being a criminal statute, must be construed strictly, and in favour of the accused if there are multiple possible interpretations. Further, as the Respondent is a trustee and the charge sheet made no allegation that the Respondent held a position in or was engaged by the Deemed University, he was beyond the purview of the PC Act. Additionally, the Respondent argued that he was exempt from the scope of the PC Act as Section 2(c)(xi) only extended to individuals working at a ‘ University ’.

The controversy

The major question before the Court was whether the Respondent was a public servant under the PC Act.

The Court found that it must first be established that a ‘ Deemed University ’ was a ‘ University ’ under Section 2(c)(xi) of the PC Act. The said Section provides that staff and persons whose services are availed of by a University under the PC Act are considered as public servants. The Court noted that the technical definition of ‘ University ’ under Section 2(f) of the University Grants Commission Act, 1956 ( “UGC Act”) , [11] relied on by the Respondent, was unhelpful as the UGC Act and the PC Act had distinct purposes, operations, and objects, and the PC Act was geared towards curbing the social evil of corruption; thus, the statutes were not pari materia . In particular, the Court observed that:

“The purpose under the PC Act was to shift focus from those who are traditionally called public officials, to those individuals who perform public duties”.

The Court while heavily relying on the term ‘ any University’ used in the PC Act, the legislative debates, indicating that the legislature emphasised the prevention of corruption in educational institutions, the definition of University in numerous dictionaries and lexicons and the recognition of a ‘ deemed to be University’ in Section 3 of the UGC Act, came to a conclusion that Deemed Universities and their officials perform similar public duties to Universities and their officials, and hence the Deemed University shall come within the purview of the definition of ‘ University ’ under Section 2(c)(xi) of the PC Act.

The Court then touched upon whether a trustee of a deemed university was a public servant under Section 2(c) of the PC Act. [12] It cited the 2016 Supreme Court Judgment in CBI v. Ramesh Gelli , which found that under Section 2(c)(viii) of the PC Act, ‘ a person who holds an office by virtue of which he is authorised or required to perform any public duty, is a public servant ’. ‘Public duty’ under the PC Act is a ‘ duty in the discharge of which the State, the public, or the community at large has an interest’ .

The Court found that there was prima facie grave suspicion that the Respondent was the final authority with respect to admission, collection of fees and donations, and that despite being a trustee, the Respondent rendered service by dealing with students and examinations. It concluded that while a detailed appreciation of evidence was necessary to reach a conclusion as to the exact position of the Respondent vis-à-vis the Deemed University, the Respondent ought not to be discharged under Section 227 of the Code of Criminal Procedure, 1973, and the trial court was directed to proceed with the case on merits expeditiously. As on the date of writing this article, the trial court is hearing the framing of charges.

The present case makes a decisive contribution to expanding the scope and increasing the coverage of the PC Act. Though the case relates to the specific context of Deemed Universities, in particular, the specific question of whether the Respondent as a trustee in the Board of a ‘ Deemed to be University’ is a public servant, the Supreme Court’s obiter that the purpose of the PC Act is to shift focus from merely public officials found engaging in corrupt acts to those individuals who perform public duties is vital. It indicates that the emphasis ought not to be on the position held by an individual, rather, on the public duty performed by him/her.

This indicates the potential for significant expansion of the coverage of the PC Act, the full scope of which is yet to be seen.

[1] (2016) 3 SCC 788

[2] 2020 SCC OnLine SC 412.

[3] Section 7 of the PC Act prohibits public servants from obtaining, accepting, or attempting to obtain an undue advantage either with the intention to perform or cause performance of a public duty improperly or dishonestly, or forbear or cause forbearance of such duty either himself or through another person. Acceptance such advantage as a reward for any of these acts or inducing another public servant to commit such acts is similarly prohibited under this section.

[4] Section 8 of the PC Act prohibits a person from giving, or promising to give an undue advantage to another person with the intention to either induce a public servant to improperly perform a public duty, or to reward such public servant for improperly performing the public duty. However, the section is not applicable when the person has been compelled to give such undue advantage, and that matter is reported by the person to a law enforcement authority or investigating agency within seven days of the date of giving such undue advantage.

[5] Section 10 of the PC Act provides that where an offence is committed by a commercial organisation with the consent or connivance of an officer of the organisation, such officer will be liable and punishable for such offence

[6] Section 13(1)(b) of the PC Act provides that a public servant intentionally enriching himself illicitly during the period of his office is guilty of criminal misconduct.

[7] Section 13(2) of the PC Act provides that commission of criminal misconduct is punishable with imprisonment of at least four and at most ten years, as well as by a fine.

[8] Section 109 of the Indian Penal Code provides that if the unlawful act is committed due to an abetment, and no express provision is made under the Indian Penal Code for punishing such abetment, then the abettor shall be punished with the punishment provided for in the offence.

[9] (2016) 7 SCC 353.

[10] (2015) 16 SCC 530.

[11] Section 2(f) of the UGC Act provides: “University” means a University established or incorporated by or under a Central Act, a Provincial Act or a State Act, and includes any such institution as may, in consultation with the University concerned, be recognised by the Commission in accordance with the regulations made in this behalf under this Act.’

[12] Section 2(c) of the PC Act defines the term ‘public servant’, and enumerates individuals considered as public servants.

Prevention of Corruption Act, 1988, Objectives, Salient Features

Prevention of Corruption Act, 1988 is a legislation in India that aims to combat corrupt practices & promote integrity in public administration. Know all about PCA act, its Objectives, Features here.

Table of Contents

Prevention of Corruption Act, 1988

In the realm of combating corruption, the Prevention of Corruption Act, 1988 holds significant importance. Enacted in India, this legislation serves as a crucial tool in curbing corrupt practices and promoting integrity in public administration. The Prevention of Corruption Act, 1988 sets the framework for prosecuting individuals involved in corrupt activities and establishes measures to prevent corruption in various spheres of society. By emphasizing accountability, transparency, and strict legal consequences, this act strives to foster a culture of ethical conduct and uphold the principles of good governance.

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Prevention of Corruption Act, 1988 Objectives

As per the provisions of the Prevention of Corruption Act, 1988, the objectives of the act can be summarized as follows:

Preventing Corruption : The act aims to prevent corrupt practices by establishing a legal framework that criminalizes bribery, abuse of public office, and illicit enrichment.
Promoting Transparency and Accountability: The act seeks to promote transparency and accountability in public administration by requiring public servants to disclose their assets, liabilities, and financial interests.
Deterrence and Punishment : The act aims to deter individuals from engaging in corrupt practices by imposing strict penalties, including imprisonment and fines, on those found guilty of corruption offences.
Investigating and Prosecuting Corruption Case s: The act provides for the investigation and prosecution of corruption cases, outlining the procedure for gathering evidence, conducting trials, and ensuring a fair and expeditious legal process.
Protecting Whistleblowers : The act recognizes the importance of whistleblowers in exposing corruption and provides protection to individuals who report corruption-related offences in good faith.
International Cooperation : The act enables international cooperation in the fight against corruption by facilitating the exchange of information and mutual legal assistance with other countries.
Asset Recovery : The act includes provisions for the identification, seizure, and confiscation of the proceeds of corruption, aiming to deter individuals from benefiting from their corrupt acts.
Preventive Measures : The act emphasizes the need for preventive measures to combat corruption, including establishing vigilance commissions, promoting awareness, and educating public servants and citizens about the detrimental effects of corruption.

Prevention of Corruption Act, 1988 Salient Features

The Prevention of Corruption Act 1988 in India encompasses several salient features aimed at combating corruption. Some of its notable features include:

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Prevention of Corruption Act in India

The performance of the Prevention of Corruption Act in India has witnessed several important landmarks, showcasing the nation’s commitment to combating corruption. One crucial milestone is the establishment of the Central Bureau of Investigation (CBI) in 1963, which investigates corruption cases under the Act.

Over the years, the Act has undergone amendments to strengthen its provisions, with the 2018 amendment introducing stricter measures to tackle bribery and extending the Act’s scope. Landmark corruption cases such as the Bofors scandal, the 2G spectrum case, and the Coalgate scam have shed light on corruption issues, leading to investigations, prosecutions, and convictions, thereby underscoring the Act’s role.

The Whistleblower Protection Act, 2014, has provided protection to individuals exposing corruption, encouraging their active participation in anti-corruption efforts. International cooperation in combating corruption has also been strengthened, with India signing agreements for mutual legal assistance and actively participating in global forums like the United Nations Convention against Corruption (UNCAC).

The establishment of the Lokpal and Lokayuktas through the Lokpal and Lokayuktas Act, 2013, has further bolstered anti-corruption mechanisms at the national and state levels. Additionally, the Prevention of Money Laundering Act, 2002, and subsequent amendments have facilitated asset recovery by enabling the identification and confiscation of proceeds of corruption. While challenges persist in the effective implementation of the Act, these landmarks signify the government’s determination to address corruption and strengthen anti-corruption measures.

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Prevention of Corruption Act 1988 UPSC

The topic of the Prevention of Corruption Act, 1988 holds significant importance for the UPSC (Union Public Service Commission) examination as it aligns with the UPSC Syllabus , particularly in areas such as Governance, Ethics, and Integrity. Understanding the provisions and implications of this act is crucial for UPSC aspirants, as questions related to corruption, ethics in public administration, and anti-corruption measures are commonly featured in the examination. Additionally, knowledge of the Prevention of Corruption Act, 1988 can be acquired by joining UPSC Online Coaching and taking UPSC Mock Test , as they enables candidates to analyze case studies, apply ethical principles, and evaluate policy implications in the context of corruption prevention and governance.

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Prevention of Corruption Act, 1988 FAQs

What is the 7 a prevention of corruption act.

Section 7A of the Prevention of Corruption Act deals with the criminal misconduct of a public servant by obtaining any valuable thing or pecuniary advantage other than legal remuneration.

What is Rule 19 of Prevention of Corruption Act?

Rule 19 of the Prevention of Corruption Act pertains to the procedure for conducting an inquiry into the allegations of corruption against a public servant.

What is Section 10 of Prevention of Corruption Act 1988?

Section 10 of the Prevention of Corruption Act, 1988 covers the punishment for abetment of offenses under the act.

What is Section 11 of Prevention of Corruption Act case laws?

Section 11 of the Prevention of Corruption Act includes case laws related to the criminal conspiracy of public servants in committing corruption offenses.

What is Section 12 of Prevention of Corruption Act?

Section 12 of the Prevention of Corruption Act specifies the punishment for abetment of offenses punishable under the act.

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Sansad TV: 75 Years: Laws that Shaped India- The Prevention of Corruption Act, 1988

Introduction:

The Prevention of Corruption Act, 1988 was passed to make the anti-corruption laws more efficacious by widening their coverage and strengthening the then-existing provisions. Public servants in India can be penalized for corruption under the Indian Penal Code, 1860 and the Prevention of Corruption Act, 1988. The Benami Transactions (Prohibition) Act, 1988 prohibits benami transactions. The Prevention of Money Laundering Act, 2002 penalises public servants for the offence of money laundering. India is also a signatory (not ratified) to the UN Convention against Corruption since 2005. The Convention covers a wide range of acts of corruption and also proposes certain preventive policies.

The Acts related to corruption

Indian Penal Code, 1860:

The IPC defines “public servant” as a government employee, officers in the military, navy or air force; police, judges, officers of Court of Justice, and any local authority established by a central or state Act.
Section 169 pertains to a public servant unlawfully buying or bidding for property. The public servant shall be punished with imprisonment of upto two years or with fine or both. If the property is purchased, it shall be confiscated.
Section 409 pertains to criminal breach of trust by a public servant. The public servant shall be punished with life imprisonment or with imprisonment of upto 10 years and a fine.

The Prevention of Corruption Act, 1988

In addition to the categories included in the IPC, the definition of “public servant” includes office bearers of cooperative societies receiving financial aid from the government, employees of universities, Public Service Commission and banks.
If a public servant takes gratification other than his legal remuneration in respect of an official act or to influence public servants is liable to minimum punishment of six months and maximum punishment of five years and fine.
The Act also penalizes a public servant for taking gratification to influence the public by illegal means and for exercising his personal influence with a public servant.
If a public servant accepts a valuable thing without paying for it or paying inadequately from a person with whom he is involved in a business transaction in his official capacity, he shall be penalized with minimum punishment of six months and maximum punishment of five years and fine.
It is necessary to obtain prior sanction from the central or state government in order to prosecute a public servant.

Shortcomings and criticism

The amendments narrow this definition significantly, by adding the test of intention, meaning prosecuting agencies will have to prove a conspiracy to carry out corrupt acts, rather than simply pointing to disproportionate assets or questionable actions.
If the public servant dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or any property under his control as a public servant or allows any other person so to do or if he intentionally enriches himself illicitly during the period of his office.
This means that if a public servant cannot account for assets or property disproportionate to their known sources of income, then they are presumed to have intentionally enriched themselves illicitly.
The changed clauses however, do not account for assets that have been illicitly procured for other people.
The amendment Bill has not mentioned who the concerned authorityis for providing sanctions for investigating a public official.
Sections 7, 8, 9 and 10 of the existing Act have been deleted and replaced by completely new provisions, with completely new definitions and words. It may now take decades before the new provisions are properly interpreted and settled by judiciary.
Further, the maximum punishment for this would now be only 7 years imprisonment as against the existing punishment for 10 years.
This permission will give immunity to corrupt Government officers.
Even sanction for prosecution of corrupt public servants would now be needed even after their retirement, giving them one more level of immunity or protection.

There should be a comprehensive package to fight against corruption. The government must strengthen existing laws like whistle-blower protection act, lokpal act etc. There should be an equal focus on judicial reform and police reform to create a deterrence.

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Union of India - Act

The prevention of corruption act, 1988, act 49 of 1988.

Published in Gazette 49 on 9 September 1988
Assented to on 9 September 1988
Commenced on 9 September 1988
[This is the version of this document at 26 July 2018.]

Chapter I Preliminary

1. short title and extent., 2. definitions., chapter ii appointment of special judges, 3. power to appoint special judges., 4. cases triable by special judges., 5. procedure and powers of special judge., 6. power to try summarily., chapter iii offences and penalties, 7. [ offence relating to public servant being bribed. [substituted by act no. 16 of 2018, dated 26.7.2018.], 7a. taking undue advantage to influence public servant by corrupt or illegal means or by exercise of personal influence., 8. offence relating to bribing of a public servant., 9. offence relating to bribing a public servant by a commercial organisation., 10. person in charge of commercial organisation to be guilty of offence., 11. public servant obtaining [undue advantage] [substituted 'valuable thing' by act no. 16 of 2018, dated 26.7.2018.] , without consideration from person concerned in proceeding or business transacted by such public servant., 12. [ punishment for abetment of offences. [substituted by act no. 16 of 2018, dated 26.7.2018.], 13. criminal misconduct by a public servant., 14. [ punishment for habitual offender. [substituted by act no. 16 of 2018, dated 26.7.2018.], 15. punishment for attempt., 16. matters to be taken into consideration for fixing fine., chapter iv investigation into cases under the act, 17. persons authorised to investigate., 17a. [ enquiry or inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties. [inserted by act no. 16 of 2018, dated 26.7.2018.], 18. power to inspect bankers books., 18a. provisions of criminal law amendment ordinance , 1944 to apply to attachment under this act., chapter v sanction for prosecution and other miscellaneous provisions, 19. previous sanction necessary for prosecution., 20. [ presumption where public servant accepts any undue advantage. [substituted by act no. 16 of 2018, dated 26.7.2018.], 21. accused person to be a competent witness., 22. the code of criminal procedure, 1973 to apply subject to certain modifications., 23. particulars in a charge in relation to an offence under [section 13 (1) (a).] [substituted 'section 13(1)(c)' by act no. 16 of 2018, dated 26.7.2018.], 24. [ [omitted by act no. 16 of 2018, dated 26.7.2018.], 25. military, naval and air force or other law not to be affected., 26. special judges appointed under act 46 of 1952 to be special judges appointed under this act., 27. appeal and revision., 28. act to be in addition to any other law., 29. amendment of the ordinance 38 of 1944., 29a. [ power to make rules. [inserted by act no. 16 of 2018, dated 26.7.2018.], 30. repeal and saving., 31. omission of certain sections of act 45 of 1860 ..

Understanding The Prevention Of Corruption Act,1988: An Analysis

Need for anti corruption law, background history of the legislation, what is corruption, corruption = discretion + mystification - accountability, structure and skeleton of the prevention of corruption act, 1988.

public duty means a duty in the discharge of which the State, the public or the community at large has an interest.
any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty
any person in the service or pay of a local authority.
any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956).
any Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions.
any person authorised by a court of justice to perform any duty, in connection with the administration of justice, including a liquidator, receiver or commissioner appointed by such court
any arbitrator or other person to whom any cause or matter has been referred for decision or report by a court of justice or by a competent public authority.
any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election.
any person who holds an office by virtue of which he is authorised or required to perform any public duty.
any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956).
any person who is a chairman, member or employee of any Service Commission or Board, by whatever name called, or a 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.
any person who is a 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 or any other public authority in connection with holding or conducting examinations.
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.
Gratification is not limited to pecuniary remuneration
legal remuneration includes all remuneration permitted by the Government or organisation, in which the person serves receives.
Any offence punishable under this act
Any conspiracy to commit or any attempt to commit or any abetment of any offence punishable under this act.
in case of Delhi Special Police Establishment, an Inspector of Police
in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under Section 8(1) of the CrPC, an Assistant Commissioner of Police,
elsewhere, 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. If a police officer not below the rank of an Inspector of Police is authorised by the State Government by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without a warrant: An offence referred to in section 13(1) shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.
in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government,
in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government,
in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed.
In the case of a person who is employed or was at the time of commission of the alleged offence employed in connection with the affairs of the Union and is not removable from his office without the sanction of the Central Government, of Central Government
In the case of a person who is employed or was at the time of commission of the alleged offence employed in connection with the affairs of a State and is not removable from his office without the sanction of the State Government, of State Government,
In the case of any other person, of the authority competent to remove him from his office.
such person has filed a complaint in a competent court about the alleged offences for which the public servant is sought to be prosecuted; and
the court has not dismissed the complaint under section 203 of The Code of Criminal Procedure, 1973 (2 of 1974) and directed the complainant to obtain the sanction for prosecution against the public servant for further proceeding.
who has ceased to hold the office during which the offence is alleged to have been committed, or
who has ceased to hold the office during which the offence is alleged to have been committed and is holding an office other than the office during which the offence is alleged to have been committed.
No finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required, unless in the opinion of that court, a failure of justice has been occasioned,
No court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice,
No court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
he shall not be called as a witness except at his own request,
his failure to give evidence shall not be made the subject of any comment by the prosecution or give rise to any presumption against himself or any person charged together with him at the same trial,
the proof that he has committed or been convicted of such offence is admissible evidence to show that he is guilty of the offence with which he is charged, or
he has personally or by his pleader asked any question of any witness for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or of any witness for the prosecution, or
he has given evidence against any other person charged with the same offence.
guidelines which can be put in place by commercial organization under Section 9
guidelines for sanction of prosecution under Section 19(1),
any other matter which is required to be prescribed.

Analysis Of The Prevention Of Corruption Act, 1988

Whether the person is in the payroll or service of the government,
Whether the person is remunerated by the government by fees or commission,
Whether the person is entrusted with the performance of any public duty.
https://cvc.gov.in/sites/default/files/scr_rpt_cvc.pdf
http://www.nja.nic.in/Concluded_Programmes/2016-17/P-989_PPTs/6.%20TM%20Bhasin%20Presentation.pdf
AIR 1998 SC 2120: 1998 (4) Supreme 1: (1998) 4 SCC 626: 1998 Cr LJ 2930: (1998) 1 SCJ 529.
AIR 1984 SC 684: (1984) 2 SCC 183: (1984) 2 SCR 495: 1984 Cr LJ 613: 1984 CAR 141.
Criminal Appeal Nos. 1077-1081 OF 2013 with Central Bureau of Investigation through Superintendent of Police, BS & FC & Anr. Versus Ramesh Gelli, Writ Petition (CRL.) NO. 167 OF 2015.
2019 Latest Caselaw 1209 SC
(2014) 2 SCC 1
2020 SCC OnLine Jhar 195 , decided on 17-02-2020

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Home » Articles » Corruption Cases in India

Corruption Cases in India

Reading Time - 5 minutes

by B&B Associates | Nov 7, 2017 | 0 comments

India is a large country with a population of 125 crores. It is the second-most populous country after China. After independence in the year 1947, India has developed a lot. Despite the development, the challenges like illiteracy, poverty, casteism, corruption, etc. loom over its horizon. Out of all the problems, corruption is the biggest challenge as it poses a serious threat to India’s economic development.

To remove corruption from the roots of Indian society is a challenge. In the pre-independence period, there was no separate law to deal with the corruption cases in India. However, there was only a separate chapter entailed in IPC titled “offence by public servants”. Section 161 to 165 IPC contained the provisions to prosecute the corrupt public servants.

Position after World War II

After World War II, a need for the separate piece of legislation was felt given the scenario of prevalent corruption. It was felt that during World War II, there was a considerate rise in the corruption and the existing laws were proving to be insufficient to deal with the problem.

To prosecute the corrupt public servants in order to curb the ever-growing corruption, the Bill for separate legislation was moved. The said Bill concentrated on the stringent dealing of the cases related to bribery and corruption of the public servants under the Criminal Law and to save innocents from being falsely implicated in corruption cases. This bill was passed and the Prevention of Corruption Act, 1947 came into being.

Today, Corruption Cases in India are dealt with under the Prevention of Corruption Act 1947. Since the coming of the Prevention of Corruption Act, Corruption cases have become a major field of litigation. From the Point of View (POV) of an advocate, the legislation is quite realistic and logical. Nonetheless, a case of corruption demands quite a judicious approach.

Salient features of Prevention of Corruption Act, 1947

This act came into force in the year 1947 but it couldn’t produce the desired results. It neither redefined nor expanded the definition of offences related to corruption which already existed in the IPC. Section 8 of the Act stated that a statement by the bribe giver will not make him liable to be prosecuted. Which means that this section gave immunity to the bribe giver. This act also added the offence of criminal misconduct by a public servant under section 5. Some amendments were also made to this act of 1947 in the year 1964. Still, it couldn’t fulfil the purpose of combating corruption.

Amendment Act of 1988

To the Act of 1947, certain amends were made and the Government of India passed the Prevention of Corruption Act, 1988 with certain modifications. This amended Act combined the provisions of Prevention of Corruption Act, 1947, the Criminal law Amendment Act, 1952 and Section 161-165- A IPC with few alterations. The Prevention of Corruption Act, 1988 widened the scope of the expression “Public Servant” by entailing its definition and also prescribes punishment for a person who helps the public servant in the commission of the offence of bribery and corruption. The scope of the Act has widened and has become more effective.

Definition of a Public Servant:

The definition of a Public servant is given under Section 2 (c) of the Act. Basically, a Public Servant is a person who:

Gets remunerated by the government.
The Judge or any other person who is appointed by the court of law to perform any duty, in connection with the administration of justice such as an arbitrator.
is a chairman or a member of any state commission or board.
is vice-chancellor of any governing body.

It includes 12 categories of persons within the ambit of Public Servants. The said Section reads as follows:

“2(c) “public servant” means —

any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty;
(any person in the service or pay of a local authority;
any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 ;
any Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;
any person authorised by a court of justice to perform any duty, in connection with the administration of justice, including a liquidator, receiver or commissioner appointed by such court;
any arbitrator or other person to whom any cause or matter has been referred for decision or report by a court of justice or by a competent public authority;
any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;
any person who holds an officer by virtue of which he is authorised or required to perform any public duty;
any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956; 2
any person who is a chairman, member or employee of any Service Commission or Board, by whatever name called, or a 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;
any person who is a 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 or any other public authority in connection with holding or conducting examinations;
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.

Explanation 1 . — Persons falling under any of the above sub-clauses are public servants, whether appointed by the government or not.

Explanation 2 . — Wherever the words “public servant” occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation.”

Special features of the Act of 1988

The Act was passed in the year 1988 to prevent corruption in government offices.
The Act has 5 chapters spread across 31 sections. The scope of this Act extends to the whole of India except to the State of J&K.
This Act defines public servant and covers 12 categories of persons.
This Act empowers the central and state governments to appoint special judges by releasing an official notification in the official gazette of India.
The appointed judge should be or should have been a session’s judge or an additional session’s judge under the Code of Criminal Procedure, 1973 . The hearing of the case shall be on a daily basis. The special judge is also empowered to try any offence other than those punishable under this act.
The Act also lays down the offences for which a public servant can be prosecuted. These include- taking of gratification other than legal remuneration in doing of an official act. It also included taking possession of something from the person for whom they work.

Supreme Court on the position of Politicians holding public offices (MP’s & MLA’s)

the ambit of the definition of Public Servant clearly sets out that any person who is holding a public office and performing public duties and is remunerated by the Government shall be a public servant. This position has been also clarified vide various landmark cases such as

Habibulla Khan v. the State of Orissa, (1995) 2 SCC 437 and
V. Narasimha Rao v. State. (1998) 4 SCC 626

In these cases, the Hon’ble Supreme Court has observed that MP’s and MLA’s are under the ambit of the definition of a public servant under this act. They also hold offices and perform public duty.

In State of West Bengal vs. Manmal Bhutoria, (1977) 3 SCC 440 it was held by the Hon’ble Supreme Court that the crucial date for the purpose of attracting the provisions of the Prevention of Corruption Act is the date of the commission of the offence. When the person arraigned must be “Public Servant”. Retirement, resignation, dismissal or removal of a ‘public servant’ would not wideout the offence which was committed while in service. For any offence committed by a public servant during his tenure, he can be prosecuted even post-retirement.

Investigation of a corruption case:

Section 17 of this Act provides for the person who is competent to investigate. No police officer below the rank of a Deputy Superintendent can investigate the case.

Malicious litigation is a possibility which one cannot ignore in a country where corruption is prevalent. It can truly be a battle of life and death for an innocent who is falsely implicated. A team of legal experts – lawyers, researchers and seasoned advocates who maintain a deep understanding of jurisprudence is a need, to begin with. The team needs to have a thorough knowledge of the law of evidence, legalities of sting operations and legal procedure. The best advocates for corruption cases in Chandigarh have many times come across innocents who take a burn of departmental politics, jealousies and hateful vengeance. Be it any battle, it requires a tough and dedicated army. If an innocent has to come out a winner from a false corruption case made against him, it will take more than prayers. Prayer can come of use, later.

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Prevention of Corruption Act, 1988

The Prevention of Corruption Act, 1988 (PCA, 1988) is an Act of the Parliament of India enacted to combat corruption in government agencies and public sector businesses in India.

The PCA 1988 has gone through many amendments in order to better implement it. This article will highlight the features of the Prevention of Corruption Act and also shed light on the amendments implemented.

The information from the article will be useful in the polity segment of the UPSC Exams.

Candidates can read similar Polity articles from links below:

Get more Polity Notes for UPSC in the linked article.

Highlights of Prevention of Corruption Act, 1988

The Prevention of Corruption Act was enacted in order to fight corruption and other malpractices in government and public sector business in India.Under PCA, 1988 the Central Government has the power to appoint judges to investigate and try those cases where the following offences have been committed

Offences punishable under the act
A conspiracy to commit or an attempt to commit the offences specified under the act

The following are the offences specified under the Prevention of Corruption Act as well as their subsequent punishments:

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

In the case of Delhi, of an Inspector of Police.
In metropolitan areas, of an Assistant Commissioner of Police.
Elsewhere, a Deputy Superintendent of Police or an officer of equivalent rank shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a magistrate of first class, or make any arrest therefore without a warrant.

Find the list of important Parliamentary Acts of India , by visiting the linked article.

Amendments to the Prevention of Corruption Act, 1988

Two amendment acts have been passed for the Prevention of Corruption Act, 1988. One in 2013 and the other in 2018. The highlights of both the amendment acts are given below:

Highlights of the 2013 amendment act:

Bribery was made a punishable offence. A person who was compelled to bribe, should he/she report this incident to the law enforcement within seven days shall not be charged under the Prevention of Corruption Act.
Two types of offences were covered under the amended criminal misconduct. The offences are illicit enrichment as in amassing wealth disproportionate to one’s income sources and fraudulent misappropriation of property.
The amendments were made taking prior approval of the relevant government authority to conduct any investigation regarding any offences allegedly conducted by public cases. However, if the offender has been arrested on the spot for taking bribes, then this approval is not needed.
The Trial Limit for cases under PCA was fixed within two years if it is handled by a special judge. The total period for the trial should last only four years.

Highlights of the 2018 amendment act are as follows:

Bribery is a specific and a direct offence
Anyone taking bribes will face imprisonment for 3 to 7 years along with being levied a fine
Those giving bribes can also be punished with imprisonment for upto 7 years and levied a fine.
The 2018 amendment creates a provision to protect those who have been forced to pay a bribe in the event the matter is reported to law enforcement agencies within 7 days.
It redefines criminal misconduct and will now only cover misappropriation of property and possession of disproportionate assets.
It proposes a ‘shield’ for government servants, including those retired, from prosecution by making it mandatory for investigating agencies such as the Central Bureau of Investigation to take prior approval from a competent authority before conducting an inquiry against them.
However, it states that such permissions shall not be necessary for cases involving the arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person.
In any corruption case against a public servant, the factor of “undue advantage” will have to be established.
The trial in cases pertaining to the exchange of bribes and corruption should be completed within two years. Further, even after reasoned delays, the trial cannot exceed four years.
It covers bribe-giving commercial organisations to be liable for punishment or prosecution. However, charitable institutions have been left out of their ambit.
It provides powers and procedures for the attachment and forfeiture of a corruption-accused public servant’s property.

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Case Analysis

Prevention of Corruption Act: A Brief Overview

This article is written by Sanjana Suman, a student of Amity Law School, Amity University Jharkhand Ranchi

INTRODCUTION

Initially, the Indian Penal Code dealt with bribery and corruption in situations involving public servants inside the Indian Justice System. However, it was recognised in the 1945s that the current law was insufficient to fulfill the needs, and a need was felt to adopt special laws to combat bribery and corruption. As a result, the Prevention of Corruption Act, 1947 was adopted for the first time.

Based on the recommendations of the Santhanam Committee, the 1947 Act was changed twice: once by the Criminal Law Amendment Act of 1952, and again by the Anti-Corruption Laws (Amendment) Act of 1964. The 1947 Act served as a model for the 1988 Prevention of Corruption Act, which comes into force on September 9, 1988. Its goal was to make anti-corruption legislation more effective by broadening their scope and reinforcing the provisions in order to improve the overall statute.

“ 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

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. 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. India is regarded as one of the most corrupt countries in the world. Following the 2G spectrum lawsuit and the Commonwealth Games Scam in 2010, Parliament resolved to change the Act. 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. It has been noticed that unlawful gains, often known as black money, are deposited in Swiss banks or the World Bank in order to make additional black money.

Salient features of the Prevention of Corruption Act

It 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.
It has broadened the scope of definitions such as “public duty” and “public servant” under Section 2 of the act’s defining clause.
It has moved the burden of proof from the prosecution to the accused who is charged with the offence, as stated in the CrPC.
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.
The 1988 Act broadened the definition of “public servant” to include employees of the central government, union territories, nationalised banks, University Grants Commission personnel, vice-chancellors, professors, and others.
The Act criminalises ‘corrupt’ activities like as bribery, misappropriation, acquiring a monetary advantage, possessing assets disproportionate to income, and so on.

Crimes Punishable by The Prevention of Corruption Act

When a public servant receives money or gifts in exchange for a favour from someone other than their employer, they are not earning their wage.

Any person who assists the public servant in committing the crime.

When a person distributes or receives presents in order to influence a public servant through his personal connections, illegal techniques, or corrupt means, that person’s influence will be made public.

When a government employee is in charge of conducting criminal misbehaviour.

When a public servant accepts bribes or commits corruption with someone with whom he or she has a business or official relationship.

Critical analysis of the Act

The Act’s goal, as amended later, appears to establish a high level of accountability on commercial entities. The Act is based on the contemporary trend of anti-bribery and anti-corruption notions since it provides us with a tool of action expressly for cases of corruption in Public Duties. The provisions of this Act are subject to multiple interpretations, which can only be resolved through more decisions and newer revisions in this area. There are a few highlights of this legislation that have arisen as a result of the recent revisions, which are as follows:

A trial must be completed within four years of the first hearing, according to Section 4 of the Act, although there is no indication of what the deviance might entail. The entire process would be slowed and stalled as a result of this.

Despite the lack of clarity in Section 9 of the Act, it appears to imply that Indian corporations must begin adding anti-bribery provisions into their commercial agreements.

Sections 7A and 8 of the Act, which primarily deal with excessive benefits in organisations, state that anyone who is involved in corruption, whether a private or public entity, can be penalised.

When an Indian party enters into a contract with another party that engages in corrupt practises with or without the former party’s knowledge, the corporation engaging in corrupt actions may be penalised.

Simply reading the provisions of this Act, it is evident that it is aimed at risk mitigation by implementing rigorous anti-bribery and anti-corruption procedures or rules that are appropriate for our nation in order to eliminate the cancer of corruption from our society.

Landmark Cases under the Act

The question in CBI, Bank Securities & Fraud Cell v. Ramesh Gelli and Others (Writ Petition (CRL.) NO. 167 OF 2015) was what bodies are considered public servants. The Supreme Court of India has ruled that officers of private banks are public officials under the Prevention of Corruption Act (PCA) of 1988. The court further stated that the Act’s goals were to make anti-corruption legislation more effective while also broadening its scope.

The legality of Section 19 of the Prevention of Corruption Act, 1988 was called into doubt in Manzoor Ali v. Union of India (WRIT PETITION (C) NO. 305 OF 2007). The court found that a sanction for prosecution in a corruption case is not unconstitutional since the mere possibility of abuse cannot be used to declare a provision unconstitutional.

In Aiyappa v. Anil Kumar ((2013) 10 SCC 705), the court stated that the purpose of the Act’s provisions is to safeguard an innocent public servant against unjustified and mala fide prosecution.

The 2G Spectrum Case was one of the Act’s major instances, in which telecom spectrum was allocated at a bargain price by the UPA government through fraudulent and illegal ways. The acts were in breach of the Act’s requirements on public duty, and charges were filed against the individuals involved. A special CBI court was convened for the trial, and all of the defendants were acquitted on December 21, 2017.

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 also vital to remember that nothing in this universe is perfect, and the same holds true for this Act. 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.

Beyond Dollars and Cents

Corruption in Singapore is broadly defined as a bribe offered in return for a favour. The bribe can be in the form of monetary or non-monetary nature. This includes:

Money, gifts, loans, fees, rewards, commissions or other property of any description
Any office, employment or contract
Any payment, release, discharge or liquidation of any loan, obligation or other liability
Any other service, favour or advantage of any description
Any offer, undertaking or promise of any gratification

No One is Exempted

The CPIB investigates all corruption cases, whether it involves public or private sector individuals or members of the public. Regardless of the person’s rank, seniority and political affiliations, no one is exempted from the law.

Harsh Penalties

A person convicted of an offence under the PCA 1960 shall be liable to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 5 years or to both, for each count of corruption.

Ensuring Incorruptibility of the Public Service

Government employees are expected to perform their duties and responsibilities with integrity at the core of their service to the nation. If it is proven that any corrupt transaction is in relation to a contract or a proposal for a contract with the government, the person convicted shall be liable to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 7 years, or to both, for each of the corruption offence. The PCA also provides for a presumption where any gratification given or received by a person in the employment of the Government or of a public body is deemed corrupt. The burden of proof to rebut the presumption lies with the person. In addition, public officers are expected to report any case where gratification is offered, accepted or demanded. Under the PCA 1960, public officers who fail to arrest the person who gives or offers gratification to him without reasonable excuse can be liable to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 6 months or to both.

Within and Across Borders

The PCA 1960 has extra-territorial powers to deal with corrupt acts committed by a Singapore citizen outside Singapore as though these were committed in Singapore.

Identities of Informers are Protected

Under the PCA 1960, the name or address of any informer, or any matter which might lead to the discovery of the informer’s identity shall not be disclosed.

Forfeiture of Gratification

Under Section 13 of the PCA 1960, when a corrupt offender is convicted, the Court shall also order him to pay a penalty equivalent to the amount of bribes he received.

Click here to read the full Act.

IMAGES

Prevention Of Corruption Act
The Prevention of Corruption Act, 1988: A Critical Study
Download The Prevention Of Corruption Act 1988 PDF Online 2020
Understanding The Prevention Of Corruption Act,1988: An Analysis
Prevention of Corruption Act
Prevention of corruption act 1988

COMMENTS

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The Prevention of Corruption Act was enacted in order to fight corruption and other malpractices in government and public sector business in India.Under PCA, 1988 the Central Government has the power to appoint judges to investigate and try those cases where the following offences have been committed. Offences punishable under the act.
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Prevention of Corruption Act, 1988, Objectives, Salient Features

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Prevention of Corruption Act: A Brief Overview

INTRODCUTION

Salient features of the Prevention of Corruption Act

Crimes Punishable by The Prevention of Corruption Act

Critical analysis of the Act

Landmark Cases under the Act

CONCLUSION

Related posts:

Beyond Dollars and Cents

No One is Exempted

Harsh Penalties

Ensuring Incorruptibility of the Public Service

Within and Across Borders

Identities of Informers are Protected