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Understanding The Prevention Of Corruption Act,1988: An Analysis

If we cannot make India corruption free, then the vision of making the nation develop would remain as a dream.· Dr. A P J Abdul Kalam Azad, Former President of India.

Corruption is a cancer : A cancer that eats away a citizen's faith in democracy, diminishes the instinct for innovation and creativity· Joe Biden, President of United States of America.

Introduction
One of the biggest roadblock to our country's progress, success and development is the menace known as Corruption. The direct effect of the corruption falls upon the poor and middle strata. The reverberations and ripples of this growing termite permeates into every dimension of the society.

Thus, there exists the dire necessity of such a legislation which punishes such acts of corruption which takes birth through taking undue advantage of the position and abuse of power. This research paper attempts to analyse one such anti-corruption and anti-bribery legislation The Prevention Of Corruption Act, 1988

Need For Anti Corruption Law

Corruption in one form or another and has always existed in society. Kautilya in his Arthsashtras referred to various forms of corruption prevalent in his times. The modern conception of integrity of public servants in the sense that they should not use their official position to obtain any kind of financial or other advantage for themselves, their families or friends is due to the development of the rule of law and the evolution of a large, permanent public service.

The fact that fair, honest and just principles are adopted and declared in matters like recruitment, promotions, terminal benefits and. other conditions of service of public services, has further encouraged the growth of the currently accepted standards of integrity. Complaints against the highly placed in public life were not dealt with in the manner that they should have been dealt with if public confidence had to be maintained.

Weakness in this respect created cynicism and the growth of the belief that while Governments were against corruption they were not against corrupt individuals, if such individuals had the requisite amount of power, influence and protection. It is believed that the procedures and practice in the working of Government offices are cumbersome and dilatorv. The anxiety to avoid delay has encouraged the growth of dishonest practices like the system of speed money.

Generally the bribe giver does not wish, in these cases, to get anything done unlawfully, but wants to speed up the process of the movement of files and communications relating to decisions. There is a general impression that it is difficult to get things done without resorting to corruption. Scope for corruption is greater and the incentive to corrupt stronger at those points of the organization where substantive decisions are taken. Corruption can exist only if there is someone willing to corrupt and capable of corrupting.

The tendency to subvert integrity in the public services instead of being isolated and aberrative is growing into an organised, well-planned racket. Corruption has increased to such an extent that people have started losing faith in the integrity of public administration.[1]

Background – History Of The Legislation

Corruption has always existed in our society as a persistent societal virus. This problem is viewed as a plague to entire system of moral values and socio-economic structure of society. Earlier the sole penal provisions punishing corruption and bribery was present in The Indian Penal Code,1860. In the year 1945, the need for the special law dealing with corruption was felt as the existing provisions was proving to be ineffective and inadequate.

The Bakshi Tek Chand Committee was set up in 1949 to review the working of the Act 1947 to make recommendations with regard to any improvement that might be considered necessary in laws as well as in regard to the machinery in enforcing them. In pursuance to this, The Prevention of Corruption Act, 1947 was bought by legislature. Subsequently, this amended by Criminal Law Amendment Act, 1952 and again by Anti Corruption Law (Amendment) Act, 1964 on the recommendation of The Santhanam Committee on Anti Corruption. Finally, we have The Prevention of Corruption Act, 1988 (Act No. 49 of 1988) enacted by the Parliament on 9 September 1988 to combat the corruption in government agencies and public sector business in India.

What Is Corruption?

The word corruption is not defined in The Act No. 49 of 1988 perhaps it is difficult to define. Corruption refers to taking undue advantage of power illegally in quid pro quo of illegal gratification thereby abusing the position. It can be administrative or financial. According to Dr. T M Bhasin, Ex- Vigilance Commissioner, CVC at lecture delivered at National Judicial Academy, Bhopal on 04.09.2016;[2] the mathematical expression of corruption is:

Corruption = Discretion + Mystification - Accountability

It rises with increase in discretion and mystification or decrease in accountability or vice versa.

Structure And Skeleton Of The Prevention Of Corruption Act, 1988

The bedrock of the statute is anti-bribery and anti-corruption notion. The act spans into 5 chapters spreading with 30 sections.

Chapter 1 is named as Preliminary with short title, extent and definitions. The act extends to whole of India and extends to all citizens of India outside India. The important definitions are as follows:
  • public duty means a duty in the discharge of which the State, the public or the community at large has an interest.
  • 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 (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.

Act 16 of 2018 which came into effect from 26 July 2018, which brings amendment to The Prevention of Corruption Act, 1988 inserts the definition of · undue advantage which says any gratification whatever, other than legal remuneration.:
  1. Gratification is not limited to pecuniary remuneration
  2. legal remuneration includes all remuneration permitted by the Government or organisation, in which the person serves receives.
The explanation says that all person who falls in any of the above clause are public servant whether appointed by the Government or not. Further every person who is in actual possession of the situation of a public servant, whatever legal defects there maybe in his right to hold that situation will be understood as public servants.

Chapter 2 deals with Appointment of Special Judges and talks about the procedure as to how the trial will be conducted. The Central or State Government may appoint as many special judges as may be necessary to try the following:
  • 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.
The qualification for appointment of special judges are that he is or has been a Sessions Judge or an Additional Sessions Judge or Assistant Sessions Judges under The Code of Criminal Procedure Code, 1973 (2 of 1974). Any offence punishable under this act shall be tried by special judges only. Every offence specified under Section 3(1) of the act shall be tried by the special judge for the area within which it was committed or by special judge appointed for the case or if there are more than one for such area, by such one as specified by Central Government.

While trying any case, such special judge may also try any offence under Section 3, with which accused maybe charged at same trial under CrPC. 2018 amendment adds that trial shall take place on day to day basis and endeavour shall be made to ensure that it is concluded within period of 2 years. If trial is not concluded with 2 years then reasons will be recorded in writing for inability to complete the trial.

Then, trial will be further extended for reasons to be recorded in writing but such period will not exceed 6 months at a time and said period with the extended period shall not exceed 4 years. A special judge may take cognizance of offences without the accused being committed to him for trial and the trial procedure to be followed in such cases will be that of trial of warrant cases by Magistrates.

To obtain the evidence of any person supposed to have been directly or indirectly concerned or privy to offence, the special judge may tender a pardon to such person on the condition of his making true and full disclosure of the whole circumstances within his knowledge about the offence and any pardon so tendered shall for the purposes of Section 308 (1) to (5) of CrPC be deemed to have been tendered under Section 307 of the code.

The CrPC as far as consistent with this act shall apply to proceedings before a special judge and the Court of Special Judge will be deemed to be Court of Session and person conducting a prosecution be deemed to be Public Prosecutor. Section 326 and 475 of CrPC shall so far as may be apply to proceeding before special judge and in such case he will be deemed to be a Magistrate. He may sentence a convict with any sentence authorised by law for the punishment of offence for which he is convicted.

While trying an offence he shall exercise all the powers and functions exercisable by District Judge under Criminal Law Amendment Ordinance, 1944 (Ord. 38 of 1944). The special judge also has the power to try summarily in case where special judge tries any offence under Section 3(1) of the act, alleged to have been committed by a public servant in relation to contravention of any special order under Section 12A(1) of The Essential Commodities Act, 1955 (10 of 1955) or of order under Section 12A(2) of the same act , the special judge shall try the offence in a summary way and Section 262 to 265 both inclusive of apply to such trial. In case of conviction in summary trial under this section the sentence of imprisonment shall not exceed 1 year.

When at the commencement or in the course of a summary trial, it appears to special judge that the nature of the case is such that a sentence of imprisonment for a term exceeding 1 year maybe passed or for other reason it is undesirable to try the case summarily, the special judge shall, after hearing the parties, record an order to that effect and thereafter recall any witnesses and proceed to hear or rehear the case and follow the procedure of trial of warrant cases by Magistrate. No appeal by convicted person in such summary trial be made if sentence of imprisonment passed is not exceeding 1 month and fine not exceeding Rs. 2000 but an appeal shall lie where any sentence in excess of the aforesaid limits is passed by the special judge.

Chapter 3 deals with offences and penalties. Section 7 to 10 and section 12 to 14 has been substituted by Act 16 of 2018.

Section 7 makes the offence of public servant being bribed. Any public servant who obtains or attempts or attempts to obtain an undue advantage from any person with an intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty or in anticipation or in consequence of accepting an undue advantage from any person or as a reward for the improper or dishonest performance of public duty either by himself or by another public servant shall be liable under this section.

The explanations says that obtaining or attempts or attempts to obtaining undue advantage itself constitute offence even if performance of public duty is proper. These things cover abusing of position as a public servant or using personal influence over another public servant or using corrupt or illegal means. Again it is immaterial that the undue advantage is through third party or directly. Section 7A talks about taking undue advantage to influence public servant by corrupt or illegal means or by exercise of personal influence.

Section 8 makes the offence relating to bribing a public servant. Any person who gives or promises to give an undue advantage to another person or persons, with intention to induce a public servant to perform improperly a public duty or to reward such public servant for the improper performance of public duty, shall be punishable.

This section shall not apply where a person is compelled to give such undue advantage provided further that the person so compelled shall report the matter to the law enforcement authority or investigating agency within a period of seven days from the date of giving such undue advantage.

It shall be immaterial whether the person to whom an undue advantage is given or promised to be given is the same person as the person who is to perform or has performed, the public duty concerned and it shall also be immaterial whether such undue advantage is given or promised to be given by the person directly or through a third party.

If that person, after informing a law enforcement authority or investigating agency, gives or promises to give any undue advantage to another person in order to assist such law enforcement authority or investigating agency in its investigation of the offence alleged against the latter, the liability under this section will not be made.

Section 9 relates to offences relating to bribing a public servant by a commercial organization. Where an offence under this Act has been committed by a commercial organization, such organization shall be punishable with fine, if any person associated with such commercial organization gives or promises to give any undue advantage to a public servant intending to obtain or retain business for such commercial organization or to obtain or retain an advantage in the conduct of business for such commercial organization.

It shall be a defence for the commercial organization to prove that it had in place adequate procedures in compliance of such guidelines as may be prescribed to prevent persons associated with it from undertaking such conduct. The capacity in which the person performs services for or on behalf of the commercial organization shall not matter irrespective of whether such person is employee or agent or subsidiary of such commercial organization.

Whether or not the person is a person who performs services for or on behalf of the commercial organization is to be determined by reference to all the relevant circumstances and not merely by reference to the nature of the relationship between such person and the commercial organization. If the person is an employee of the commercial organization, it shall be presumed unless the contrary is proved that such person is a person who has performed services for or on behalf of the commercial organization. The offence under sections 7A, 8 and 9 shall be cognizable.

Section 10 talks about person in charge of commercial organization to be guilty of offence. When an offence under section 9 is committed by a commercial organization and such offence is proved in the court to have been committed with the consent or connivance of any director, manager, secretary or other officer of the commercial organization such director, manager, secretary or other officer shall be guilty of the offence.

Section 11 says where a public servant, accepts or obtains or attempts to obtain for himself, or for any other person, any undue advantage without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by such public servant, or having any connection with the official functions or public duty of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, shall be liable.

Section 12 makes the abetment to any offence under this act punishable and it is immaterial that the offence is committed in consequence of that abetment or not.

Section 13 makes criminal conduct by a public servant punishable. A public servant is said to commit the offence of criminal misconduct if he 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 will be liable under this section.

A person shall be presumed to have intentionally enriched himself illicitly if he or any person on his behalf, is in possession of or has, at any time during the period of his office, been in possession of pecuniary resources or property disproportionate to his known sources of income which the public servant cannot satisfactorily account for. The expression ‘known sources of income' means income received from any lawful sources.

Section 14 punishes habitual offender under this act while Section 15 punishes attempt under Section 13(1)(a). Section 16 apprises us of the matters to be taken into consideration for fixing fine. They are the amount or value of the property if the accused had procured through committing the offence, the pecuniary resources or property which the accused is unable to account satisfactorily in case of conviction under Section 13(1)(b).

Chapter 4 talks about investigation into cases under this act.
Police officer not below the rank of:
  • 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.

Section 17A to Section 17G has been inserted by Act 16 of 2018.
Section 17A deals with Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties. police officer shall not conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval
  • 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.
No such approval shall be necessary for cases involving 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. The concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month.

Section 17B to Section 17G establishes Anti-Corruption Bureau for the Union territory of Jammu and Kashmir, gives power of attachment of property, appeals against the order of Designated Authority, Issue of show cause notice before forfeiture of the property, appeals and order of forfeiture not to interfere with other punishments. Section 18 gives power to inspect banker's books. Chapter 4A has also seen light of the day through 2018 amendment.

Chapter 5 deals with sanction for prosecution and other miscellaneous provisions. Section 19 deals with previous sanction necessary for prosecution. The court shall not take cognizance of an offence punishable under Sections 7, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction, save as otherwise provided in The Lokpal and Lokayuktas Act, 2013 (1 of 2014):
  • 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.

No request can be made by a person other than a police officer or an officer of an investigation agency or other law enforcement authority, to the appropriate Government or competent authority for the previous sanction of such Government or authority for taking cognizance by the court of any of the offences specified above, unless:
  • 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.
In the case of request from the person other than a police officer or an officer of an investigation agency or other law enforcement authority, the appropriate Government or competent authority shall not accord sanction to prosecute a public servant without providing an opportunity of being heard to the concerned public servant.

The appropriate Government or any competent authority shall after the receipt of the proposal requiring sanction for prosecution of a public servant under Section 19(1) endeavour to convey the decision on such proposal within a period of three months from the date of its receipt shall be undertaken. If for granting sanction, legal consultation is required, such period shall be extended by further one month period with reasons in writing.

The Central Government may prescribe such guidelines as it considers necessary for the purpose of sanction for prosecution of a public servant. For the purposes of Section 19(1), the expression public servant includes such person
  • 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.

If for any reason whatsoever any doubt arises as to whether the previous sanction as required should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974):
  • 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.

In determining whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.

Section 20 has again been substituted by Presumption where public servant accepts any undue advantage. In any trial of an offence punishable under section 7 or under section 11, it is proved that a public servant accused of an offence has accepted or obtained or attempted to obtain for himself or for any other person, any undue advantage from any person, it shall be presumed unless the contrary is proved, that he accepted or obtained or attempted to obtain that undue advantage, as a motive or reward under section 7 for performing or to cause performance of a public duty improperly or dishonestly either by himself or by another public servant or any undue advantage without consideration or for a consideration which he knows to be inadequate under section 11, unless the contrary is proved. Section 21 says accused person to be a competent person. It says that any person charged with an offence punishable under this Act shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial. Provided that
  • 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,
  • he shall not be asked and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of any offence other than the offence with which he is charged or is of bad character, unless:
    • 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.

Section 22 says that The Code of Criminal Procedure, 1973 shall apply to this act with certain modifications. Further Section 25 says that this act shall not affect the jurisdiction or procedure applicable to any court or other authority under the Army Act, 1950 (45 of 1950), the Air Force Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957), the Border Security Force Act, 1968 (47 of 1968), the Coast Guard Act, 1978 (30 of 1978) and the National Security Guard Act, 1986 (47 of 1986).

The High Court shall have, as far as applicable, all powers of appeal and revision conferred by The Code of Criminal Procedure, 1973 (2 of 1974) on a High Court as if the court of the Special Judge were a Court of Session trying cases within the local limits of the High Court. The provisions of the act will be construed to be taken in addition to and not in derogation to any other laws in force.

The Central Government may make rules for carrying out the provisions of this Act and such rules may provide for all or any of the following matters
  • 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.
Finally, The Prevention of Corruption Act, 1947 (2 of 1947) and the Criminal Law Amendment Act, 1952 (46 of 1952) are repealed by this present act.

Analysis Of The Prevention Of Corruption Act, 1988

As Karl Kraus, an Austrian satirist said Corruption is worse than prostitution. The latter might endanger the morals of an individual, the former invariably endangers the morals of the entire country.

The 2018 amendment to the act widens the scope of the previous act and makes an attempt to punish all the offenders accused of corruption so that guilty person finds the proper place and lands up in jail. Section 21 of The Indian Penal Code defines Public Servant and gives a list of 12 points which covers person falling under them as public servant.

There is a difference between public servant and government servant as former may or may not be on the payroll of the government while latter always remains on the payroll of the government. Thus, public servant is the genus and government servant is its species. While Section 21 IPC places more emphasis on concept of employment, Section 2(c) of The Prevention of Corruption Act, 1988 considers public duty as core idea.

In a democratic country, the MP & MLA who represent the people of their constituency in the highest law making bodies at the Centre and State level respectively. It is difficult to conceive of a duty more public than this or of a duty in which the State, the public or community at large would have greater interest. It is on this assumption that the apex court in P.V. Narsimha Rao v. State (CBI/SPE)[3] held that MP & MLA are public servants under 1988 act and overruled its earlier decision in R.S. Nayak v. A.R. Antulay[4] that MLA is not a public servant as it is not on the payroll of state government i.e. executive authority.

The difference between the ruling of the abovementioned cases is that Antulay's case was interpreted according to Section 21 IPC while P.V. Narsimha Rao's case has been interpreted according to Section 2(c)(viii) of The Prevention of Corruption Act, 1988.

A person must hold some office and holding of that office implies charge of a duty attached to that office.

Thus, the conditions for getting fallen into the definition of Public Servant under Act 1988 are:
  • 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.
If any one of the condition is satisfied, the person will be designated as Public Servant irrespective of the nature of job one is entrusted with.

The definition of the word ‘undue advantage', in the act aims to do away with all the technical defects through which accused may try to evade the process of law. The establishment of Court of Special Judges address the problem of overburdening of courts and pendency of cases by establishing the specialised courts for special and increasing problem of corruption.

The act further provides the time frame within which the trial must be completed, power of summary trial etc, aims to achieve the above mentioned objectives. Through 2018 amendment, Chapter 3 has been changed to the core and is now more efficient and effective. Earlier it was only the act of demanding or taking bribe comes within the domain of the act.

Now this amendments broadens the horizons of the substantive act with not only covering the the act of demanding or taking of bribe but also, penalizes the act of giving or promising to give bribe. This not only deters the public servant but the general public who believes in the power of money and turns dear ears to the idea of meritocracy.

The act gives protection to person who is helping the authorities in nabbing the corrupt officials in trap cases. In offences like these, the prosecution case becomes strong when the offender is caught red handed. In order to achieve the goal of no tolerance towards corruption, this feature of the act is truly commendable to save the whistle blowers from prosecution under this act. The clutches of the present act now widens to cover commercial organizations too.

This penal provision tries to obviate the idea of usurping the rights of rightful persons by resorting to such unlawful and now illegal practices. This broadening of spectrum of the agencies where the corruption is prevalent was need of the hour so that no one is left out of it and do their mischief in harming the society. The offence under Section 7A and 8 has been made cognizable offences. This points and moreover strengthens our belief that this menace is rotting our society and now must be talked seriously.

The provision for having previous sanction before prosecuting a public servant tries to eliminate frivolous and vexatious proceedings instituted to settle personal scores and thirst for vengeance so that a person may serve his/ her organization efficiently and effectively without the fear of people who tries to use these machineries for personal use. At the same time the legislature by way of amendment fixes the time period so that the government may not sleep over the files and justice is delivered timely.

This fixation of time period at various places honours the legal maxim of Justice Delayed Is Justice Denied. The presumption under Section 20 relives the prosecution of burden of proving to some extent and shifts it to accused to prove his innocence, since it is difficult to prove the contemplation in the mind of accused.

The Act also balances the interest of accused and strengthens him to be a competent witness in his defence and give evidence on oath in disproof of charges against him. The accused is also ensured with constitutional right against self-incrimination under Article 20(3) of The Constitution of India. The Central Government can make rules to carry out the provisions of the act, provides for filing the gaps which law makers must have left to the wisdom of law enforcers, which perhaps they could effectively make because of their understanding of nuances of ground realities.

The suggestion to make effective implementation of the act is that too much power is given to government for the appointment of judges. This gives them the power to abuse their position and power. Thus, the way of appointment must be with the consultation of apex court of the country.

Let us study the precedents set up by the courts.
In Central Bureau of Investigation, Bank Securities & Fraud Cell v. Ramesh Gelli and Ors[5], The bench, comprising Justices Ranjan Gogoi and PC Pant, held that the officers of the private banks are also covered under The Prevention of Corruption Act,1988. The aim of the act is to make anti corruption law more effective and widen its coverage.

In State of Telangana v. Managipet @ Mangipet Saveshwar Reddy[6], The bench comprising Justices, L Nageshwar Rao and Hemant Gupta, delivered the judgement on 06-12-2019, dealt with the issue that whether conducting the preliminary inquiry and obtaining sanction for the prosecution is necessary before registering the case under The Prevention of Corruption Act,1988.

The Hon'ble Court held that the preliminary inquiry warranted in Lalita Kumari v. Government of Uttar Pradesh & Ors[7] is not required to be mandatorily conducted in all corruption cases. The type of preliminary inquiry to be conducted will depend on the facts and circumstances of each case. There are no fixed parameters on which such inquiry can be said to be conducted.

The purpose of a preliminary inquiry is to screen wholly frivolous and motivated complaints, in furtherance of acting fairly and objectively. Therefore, any formal and informal collection of information disclosing a cognizable offence to the satisfaction of the person recording the FIR is sufficient.

The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage.

In Lal Babu v. State of Jharkhand[8], Hon'ble Jharkhand High Court held, exoneration in departmental proceedings has nothing to do with the criminal case under the corruption act if the allegations are different.

Conclusion
Bringing more and more laws ultimately leads to burdening people with complexities, anxiousness and state of utter bewilderedness. Although ignorance of law is no defence, but the people must know the laws through which they are bound. In order to achieve this, it is proposed that the law must be simple, clear and understandable. Further, existing laws must be implemented in the manner that aims and objectives of the act are achieved. 2018 amendment fully justified the above views.

It not only redefined the offences but provides stricter punishments with a view to create deterrent effect. As Dr. A P J Abdul Kalam said Dream is not something we see while sleeping, but one which does not let us sleep, Zero tolerance towards corruption is our dream and we are achieving it day by day through this legislation.

End-Notes:
  1. https://cvc.gov.in/sites/default/files/scr_rpt_cvc.pdf
  2. http://www.nja.nic.in/Concluded_Programmes/2016-17/P-989_PPTs/6.%20TM%20Bhasin%20Presentation.pdf
  3. AIR 1998 SC 2120: 1998 (4) Supreme 1: (1998) 4 SCC 626: 1998 Cr LJ 2930: (1998) 1 SCJ 529.
  4. AIR 1984 SC 684: (1984) 2 SCC 183: (1984) 2 SCR 495: 1984 Cr LJ 613: 1984 CAR 141.
  5. 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.
  6. 2019 Latest Caselaw 1209 SC
  7. (2014) 2 SCC 1
  8. 2020 SCC OnLine Jhar 195 , decided on 17-02-2020

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