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Prevention Of Corruption Act, 1988 For Laymen

Corruption, I think, is known by all and that it requires no definition. However, in layman language, corruption means non-performing of the official work by the officials without having any bribe. Bribe may and may not include money. The world bank (1997) defines corruption as “the abuse of public power for private benefit”. 

Corruption has been experienced, in one way or another, by all which even includes a child. When a mother offers her child to eat the food to have the chocolate thereafter, it is a form of corruption. 

The arms of corruption have not even left the courts that are said to be the temple of Justice. I, personally, have seen a court in Delhi, India where a person, after getting the bail order from the court, was asked by the official of the court to bribe him in order to complete the formal paperwork steadily. And the person had to give the bribe to the official as it was the matter of his freedom. This leads to another point which is that corruption exists because of the need.

India, as a developing country, is trying to understand the subtle dimensions of corruption in practice so that the proper laws can be made to overcome such practices. However, many laws have been laid down by legislation that help in reduction of corruption. But, we would be focusing on the Prevention of Corruption Act, 1988. 

Prevention of Corruption Act, 1988 (hereinafter referred to as Act)
The previous version of this Act was of 1947 which was amended in 1952 and 1964. In 1988 this Act came into force repealing the 1947's Act which was further amended in 2014, 2018 and 2019. After 2019's amendment this Act now extends to the whole of India including Jammu & Kashmir and applies to all Indian citizens even outside India. This Act has been basically made to prevent corruption but it has not defined the word 'corruption' itself. However, 'Public Duty', 'Public Servant' and 'Undue Advantage' have been defined in the Act which seem enough to cover the object of the word 'corruption' and of the Act.

Public Duty: sec. 2(b): A duty in the discharge of which the State, the public or the community at large has an interest.  

Public Servant : sec. 2(c):
The list of Public Servants in the Act is too long which includes from the clerk of a bank to the President of the country. Public servant is basically a person who performs above mentioned public duty.

It has been made clear by the Act itself that the person listed in sec. 2(c) is a public servant irrespective of his appointment being made by the government or not. 

The Act further clarifies that the person actually in the possession of a situation of the public servant shall be responsible with respect to such a situation as a public servant and shall be construed as a public servant even if there arises any kind of issues related to the right of his being appointed as the public servant or similar kind of such issues. 

In the case of P.V. Narsimha Rao vs. State (CBI/SPE) 1998 (4) SCC 626 , SC held that MPs/MLAs are also public servants for the purpose of the Prevention of Corruption Act.

Undue Advantage: sec. 2(d) : Any gratification whatever, other than legal remuneration. Gratification includes money and other kinds as well.
Legal Remuneration includes all remuneration which a public servant is permitted by the Government or the organization, which he serves, to receive.  

Special Judges For PCA
?This Act requires the appointment of sessions judges as special judges to entertain the offences punishable under this Act.

Only special judges have been given the power to try offences under this Act. Offences under this Act cannot be tried by any other court except by the courts of special judge. Also, special judges have been given power to try any other offence punishable under any law, for the time being, along with the offences punishable under this Act.

This means if a person commits any offence which is punishable under this Act and while doing so he commits any other offence which is punishable under IPC or any other law being in existence, then the special judge can try both the offences in the same trial. This provision was created to speed up the trial and to save the time of various courts that may have been required otherwise to be indulged to adjudicate the matter. 

As the offences under this Act affect the economy and core public functions and therefore the fast adjudication has always been required in such cases. Therefore, Cases falling under this Act are to be proceeded with on a day to day basis and are to be concluded within 2 years which may be extended by 6 months at a time and the entire proceeding is to be concluded within 4 years and reasons for such extension, if any, are to be recorded in writing. 

Special judge has been given power to tender a pardon to any person supposed to have been directly or indirectly concerned in an offence on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. This power seems important because using this power, we may know about the hidden people included in corruption and by that, we may stop the corrupt practices going on in public sectors which would further help in the country's growth and smooth functioning. 

The Special Judge has also been directed to try the offence in a summary way in some circumstances and in a warrant way in another. If, in a summary way trial, the special judge passes a sentence of up to 1 month and/or fine of up to 2000/- rupees, there cannot lie any appeal against such an order. This is mainly because to conclude the trial as soon as possible. 

?Forms of Public Servant Being Bribed:
  1. Obtaining or attempting to obtain any undue advantage from any person with the intention to perform his official public duty improperly or dishonestly.
    If he, the public servant, has no intention to work dishonestly or improperly after getting or being promised to get some undue advantage, then he would not be liable under this Act.  

    For e.g., a person offers a public servant a box of sweets saying that he got blessed with a baby girl and that's why he is offering sweets to all and even if public servant accepts such a box of sweets, he, the public servant, shall not be liable because he has no intention to misbehave with his official duty. And even if some improper work has been done by such a public servant after getting the sweets box, he would not be liable under this Act, though sweets box falls under the definition of undue advantage, rather such performance of an improper work shall be construed as a mistake etc. but not the corrupt practice because of non involvement of the intention.
     
  2. Obtaining or attempting to obtain any undue advantage from any person as a reward to perform his official public duty improperly or dishonestly.
    Here, undue advantage is accepted or attempted to accept after the dishonest official public duty has been performed by him i.e., by the public servant. Therefore, the concept of intention becomes irrelevant in this case because he, the public servant, knows that he has performed his official public duty in an improper manner and that is why he is asking for or accepting undue advantage as a reward. Here, intention becomes obvious.
     
  3. Performing the official duty improperly or dishonestly in anticipation of or in consequence of accepting any undue advantage from any person.
    When a public servant gets a hint by any means that if he performs his official duty in an improper manner or dishonestly then he shall be paid undue advantage, such an act is a form of corruption and it becomes irrelevant whether he gets paid or not at later stage. This is one of the examples. However, it is hard, in this particular example, to find out whether he did official work in an improper manner in anticipation of undue advantage or that it was an honest mistake.

Another example may be that the public servant has been promised to be paid undue advantage once he has completed his official work dishonestly. And when he does the work dishonestly in consequence of getting undue advantage later on, he gets liable under this Act. But again, it becomes hard to find out if it was an honest mistake or the real corrupt practice. 

In all of the above 3 points, a public servant may either perform his public duty improperly by himself or he may direct any other public servant to perform that way.

Obtaining or just an attempt to obtain any undue advantage by a public servant is an offence under this Act and it is immaterial whether the work done by the public servant is improper/dishonest or not.

It is immaterial whether the public servant obtains or attempts to obtain the undue advantage for himself or for any other person.

It is immaterial, too, whether the public servant obtains or attempts to obtain undue advantage directly or through any other person.

Punishment : 3-7years + Fine.

Influencing Public Servant:
?The Act in section 7A makes it an offence when a person gets or even attempts to get any undue advantage from another person to influence the public servant in order to make him perform his official duty dishonestly or improperly.

This usually happens when a person has a relative, friend or any known person who is a public servant and in order to earn some money or otherwise, the first person asks for money etc. from any third person of whom some work is pending in the hands of that public servant. So, in order to prevent such types of corruptions, this section came into being. Also, it is irrelevant whether the public servant performed his official duty dishonestly or improperly accordingly or not. Simply asking for or attempting to get favor, money or kind to influence the public servant accordingly makes it a crime punishable with the 3 years sentence which can go up to 7 years along with the fine.

When such an influence is intended by giving some undue advantage or by attempting to give some undue advantage to the public servant by a commercial organization, then, in such a case, the commercial organization is liable to fine only. However, there can be imposition of imprisonment as a sentence in case of commercial organization. This would be discussed later in the same Article. 

Bribery Giver Is Also Liable:

?Act also makes it an offence and a person guilty of corruption when he, intentionally, gives or promises to give any undue advantage to anyone in order to induce/influence the public servant to make him perform his official duty improperly. In simple terms, a person who gives or tries to give bribery or undue advantage to influence the public servant is also liable under this Act.

Intention: Intention of the giver is necessary as we talked in one of the examples above that if a person gives a sweets box to a public servant because he got gifted with a baby girl and the public servant considers such a sweets box as an undue advantage to work improper in favor of the sweets box giver. In such a case, the giver should not be liable as he had no intention to induce the public servant to work improperly.

Anyone: Anyone is important to understand. Anyone can be any person who further becomes the medium to influence or induce the public servant to perform improperly his official duty. For e.g., 'A' gives money to 'B', to induce the public servant to perform his official duty improperly, who further gives money to 'C' and 'C' to 'D' and so on. In such a case all persons from 'A' to 'D' and all thereafter shall be liable and it shall include to the public servant as well who has been given or promised to be given such undue advantage.
Such undue advantage may be for the concerned work to be performed or already has been performed.

However, there is an exception to this rule which is that when a person is compelled to give undue advantage. It means when a person is compelled to give undue advantage to get his work done and when he gives that undue advantage then he shall not be liable under the Act but he has to disclose the fact to the law enforcement authority or investigating agency within 7 days of giving such undue advantage.  

Public Servant + Undue Advantage + No Consideration :

The Act makes a public servant liable under this Act when he obtains or attempts to obtain any undue advantage (it may be for the public servant himself or for any third person) without adequate consideration from any person who is interested in official work of such public servant or of senior of such public servant.

The relevant point is that such a public servant must know two things:
  1. That the consideration is nil or inadequate.
  2. That from whom he is obtaining such undue advantage is interested with respect to some business transaction or otherwise in his official work.
So, when a public servant knows that the person from whom he is having undue advantage has some interest in his or his senior's official work and that the undue advantage that he is receiving has no adequate consideration then such a public officer becomes liable under this Act.

It is not necessary that the person interested in official work has to come into picture. Any one interested in such a person or related to him can also come into picture to provide any undue advantage to such a public officer with unreasonable consideration.

Punishment: 6 Months - 5 Years + Fine. 

Commercial Organization:
In case of breach, the rule is that the commercial organization is to be punished only with a fine because of the Rule of Veil . But the Rule of Piercing the Veil exists in order to punish the real culprit hidden behind the veil of the commercial organization. The Act has provisions for both the rules.

For the first rule (rule of veil), the Act says that when a person associated with a commercial organization gives or promises to give any undue advantage to the public servant with the intention to:
  1. Obtain the business;
  2. Obtain the advantage in the conduct of the business;
  3. Retain the business; or
  4. Retain the advantage in the course of business;
for such commercial organizations, then in such a case, the organization shall be punished with a fine.

A person associated with the commercial organization means a person who performs services for or on behalf of the commercial organization. And all the relevant circumstances have to be considered while declaring a person being associated with that commercial organization.

But where it is proved in the court that such an offence by the commercial organization has been committed with the consent or connivance of any director, manager, secretary or other officer of the organization, then such a director, manager etc. shall be guilty under this Act and punishment for that shall be 3 years which may go up to 7 years along with the fine. ---- Rule of Piercing the Veil.

Abetment:
Abetting an offence punishable under this Act is also an offence. Abettor may be punished with a sentence of 3 years which may go up to 7 years along with the fine.

It is immaterial whether the offence is committed by such abetment or not. Once abetted, it attracts punishment under the Act.

Habitual Offender:
For the habitual offender, punishment is 5 to 10 years sentence along with fine.

If a person has been convicted for an offence punishable under this Act and after such a conviction, if the same person is found guilty for an offence punishable under this Act then he shall be punished as mentioned above

Criminal Misconduct By The Public Servant:
This provision is probably the most important one. When a public servant is entrusted with any property under his control in his official capacity of being a public servant and if such a public servant misappropriates that property for his own use either dishonestly or fraudulently then such a conduct of his is known as criminal misconduct.

This conduct is Criminal and not civil because this conduct is against the public at large.

The words 'fraudulently' and 'dishonestly' are important to consider because there may be circumstances when, in good faith, or by an honest mistake, such conduct may take place, then in such a case, it cannot be considered as criminal misconduct because criminality requires some mala fide intention behind the action to make it of criminal nature.

When a public servant intentionally enriches himself illicitly during the period of his office is another definition of criminal misconduct by the public servant.

Basically, when a public servant or any person on his behalf is or has been in possession of pecuniary resources(money) or property, at any time during the period of his office, which is/are disproportionate to his lawful source of income and such public servant cannot satisfactorily account for such property or money is known as criminal misconduct by the public servant. This, in layman terms, is known as Possession of Disproportionate Assets because one cannot proportionate his assets with his legal source of income. It means he must have had some illegal source of income which makes him chargeable under this provision of the Act.

All those assets are to be considered for this provision which are in the possession of the public servant now at this point of time or which have been in his possession at any time during the period of his office.

For this, Punishment is 4 years to 10 years sentence along with fine. 

Investigation & Inquiry Into Offence & Prosecution:
Act details about the officers who are authorized to investigate into the offence punishable under the Act without the order of the court and to make arrest without the warrant being issued by the court.

When a public servant is being accused of an offence punishable under this Act and such an offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official duties, then in such a case, no police officer is allowed to initiate investigation or inquiry into the offence without the previous approval of the appropriate government or authority.

However, there's an exception to this rule of previous approval and it says that in cases which involve arrest on the spot on the charge of accepting or attempting to accept any undue advantage, there's no requirement of obtaining previous approval.

It has also been mentioned in the Act that with respect to certain offences punishable under this Act, the court is required to have previous sanction of appropriate government or authority for taking cognizance of those certain alleged offences.

However, in case of any error in or even the absence of such sanction, no court shall stay the proceedings going on under the Act nor shall the court, in revision or appeal, reverse or alter the findings, sentence or order passed unless the court is of opinion that a failure in justice in fact has been occasioned thereby.



Award Winning Article Is Written By: Mr.Abhay Pratap

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