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Process of Trial of a Corruption Case

With the advent of human societies, corruption has become a big problem. It was one of the vital factors for the decline of the Roman Empire. In its traditional sense, corruption refers to 'Moral Impurity'. The word corruption has its origin from the Latin word 'Corruptio' which means to spoil, pollute, abuse, or destroy. The concept of corruption has been changed with time and it varies across cultures.[1]

In a wide sense, it can be defined as any deviation from the norms. It has also been given religious norms in countries like Iran. Today, corruption means "Improper behaviour of an official position". According to Transparency International, Corruption means "the abuse of public office for private gain".

There have been different conceptions of corruption and the reasons for that are Culture, Jurisdiction, and methodology. Corruption is basically an illegal or immoral act of a person to obtain some gain to perform a duty which he is anyhow bound to perform without that consideration.

The distinction between bribery and corruption

Most people have muddled the meaning of these related words and are usually considered to be of the same meaning, however, they are different. Corruption is the unlawful usage of power by a person in public authority or performing public duty whereas bribery is a form of corruption that involves giving and taking gifts for personal gains, it includes the money and other benefits.

Corruption in India
Corruption has been one of the major issues for the steady growth of the Indian economy. In India, 50% of the population has, at least once, involved in the taking and giving of bribes. One of the major contributors to corruption is the trucking industry which is forced to give millions of rupees every year to various police stops at the highways.

India was ranked 86th among the 180 countries that participated in the Corruption perception index, the survey of transparency international in 2020.[2] However, it was a slight decline from the 80th position in the 2019 report, but still, there is no complacent improvement. In another survey, conducted among Asian countries, India was found to have the highest rate of use of bribes and personal links to gain access to public services. Even for obtaining personal governmental documents, rampant use of bribes is observed.

Anti-corruption laws in India

Prevention of corruption act is the principal act dealing with the procedure for corruption cases, enactment of special courts, and penalties for people involved in the act. There are also a number of laws dealing with matters of corruption i.e., Indian Penal Code, Prevention of Money Laundering Act, Prevention of Money Laundering Act, Right to Information act, Central Vigilance commission act, Lok Aayukta acts of States, etc.

Prevention of corruption act, 1988

This act was enacted on 9th September 1988 with the objective to counter corruption in government agencies and public sector undertakings in India. Before the advent of this law, the Indian penal code dealt with cases where public servants were involved but after 1945 the need for special legislation was felt because of the inadequacy of the IPC, and hence the Prevention of corruption act was first enacted in the year 1947. The act of 1947 was later replaced by the act of 1988 aiming to strengthen the law by extending its coverage.[3]

This act contains 31 sections with the objective to consolidate and amend laws relating to matters of corruption. This act is applicable to public servants.

In State of Madhya Pradesh v. Ram Singh,[4] 2000 Supreme court held that the provisions of the Prevention of corruption act were enacted to make effective laws for the prevention of bribes and corruption amongst public servants. In this case, the court further held that this legislation is to curb the illegal activities and it must not be construed liberally in favour of the accused.

Salient features of the Act

It incorporates under itself the old prevention of corruption act and some changes, some sections from the Indian penal code and the criminal law amendment act. It has enlarged the scope of public duty and public servant. The burden of proof used to be on the prosecution but this act has been shifted to the person accused.

This act makes it clear that the investigation of such cases should be made by an officer equivalent to or above the rank of a Deputy superintendent of police. Earlier the employees of the central government, UTs, Banks were not included in the scope of a public servant but this act included them under its ambit. Through this act bribes, misappropriation, obtaining pecuniary advantage and disproportionate possession of property have been accepted as corrupt acts.

Investigation Agencies for Anti-Corruption policies

Anti-corruption laws were made with the objective to curb corrupt and illegal gain of money and other related things. Investigation agencies are formed to fulfill this objective. These agencies have tried their best to implement these laws. These are also responsible for spreading awareness against corruption.
  1. Supreme court and High courts:
    A public interest litigation can be directly filed in these courts regarding corruption in the public sector and if the court finds any merit in the case, it can transfer the case to the central bureau of investigation for further investigation.
     
  2. Central vigilance commission:
    It was created in the year 1964, it is the apex body for vigilance in corruption cases. It was created under the CVC (Central vigilance commission) act. It is an independent body and free from the control of governmental organs.
     
  3. The central bureau of Investigation:
    This agency has been set up by the government to investigate cases related to corruption especially in the UTs. It has now become the premium corruption investigation agency. Very large and intense cases are generally referred to them for investigation by states, Supreme court, and high courts.
     
  4. Anti-corruption bureau:
    These are the agencies of the state police and these agencies work within their state. Each state has its own anti-corruption bureau and officials appointed in these agencies do not perform the general conduct of the police, however, they only investigate cases related to corruption.
These agencies have powers only to investigate a case under the prevention of corruption act dealing with a public servant and public duty, let us understand these concepts.

Who is a Public Servant?

Section 161 and Section 165A of the Indian penal code were repealed by the PCA. The definition of a public servant is given in Section 2(c) of the PCA.[5] According to which any person who is:
  • Government Employee;
  • An Employee At Local Authority;
  • Employed In Central, Provincial Or State Act, Or An Authority Or A Body Owned Or Controlled Or Aided By The Government Or A Government Company;
  • Any Judge Or Any Adjudicatory Function By A Person;
  • Authorised By A Court Of Justice;
  • Any Arbitrator Or Competent Public Authority;
  • Performing Electoral Roll Or To Conduct An Election Or Part Of An Election;
  • Authorised Or Required To Perform Any Public Duty;
  • President, Secretary Of A Co-Operative Society;
  • Chairman, Member Or Employee Of Any Service Commission Or Board;
  • Who Is A Vice-Chancellor Professor, Reader, Lecturer, Or Any Other Teacher Or Employee;
  • Who Is An Office-Bearer Or An Employee Of An Educational, Scientific, Social, Cultural, Or Other Institution.

In State of Maharashtra & Anr. v.Prabhakar Rao & Anr.[6], Supreme court held that the definition of public servant given in Section 21 of IPC is not relevant in PCA,1988.

Various Supreme Court judgments have added certain people to the ambit of public servants. They are managing directors of private banks, MLAs, Ministers, persons discharging public duties and chairman of municipal council, etc.

What is a Public Duty?

It is defined in Section 2(b) of the PCA. According to Section 2(b):
It means a duty in the discharge of which the State, the public, or the community at large has an interest.[7]

Offences & Penalties
Section 7 of this act deals with offence relating to public servants being bribed. It includes the act of obtaining, accepting, or attempting:
  1. To obtain an undue advantage, with the intention to perform public duty either by himself or by another public servant;
  2. To obtain undue advantage as a reward for the improper or dishonest performance of public duty;
  3. Performs or induces another public servant to perform an improper public duty.

In P. Satyanarayana Murthy v. State of AP, 2015, the Supreme court held that to establish a crime under Section 7 and 13 of PCA, it is necessary to have proof of demand and acceptance of illegal gratification by the accused.

Section 8 of this act relates to an offence of bribing a public servant. According to which, a person if gives or promises to give an undue advantage to another person or persons, with intention To induce public servant to perform a public duty improperly, or to reward such public servant for improper performance of his duty. A person will not be liable if he is compelled to give such undue advantage.

Punishment: Imprisonment for a term up to 7 years or fine or both.
In Prakash Singh Badal v State of Punjab[8], the Supreme court held that the gratification is not restricted to pecuniary gratification. The scope of this section is very wide and also includes public servants accepting gratification to induce other public servants.

Criminal Misconduct
According to Section 13 of this act, a public servant is said to commit the offence of criminal misconduct, if:
  1. Misappropriates or converts property entrusted to him for his own use
  2. Enriches himself illicitly
Punishment: Imprisonment not less than 4 years but can extend to 10 years, liable to fine.

In simple terms, if any public servant is found to have possession of any property or money during his duty hours for which the public servant has no satisfactory account, he has committed the offence of criminal misconduct.

Supreme court in the case of M.Krishna reddy v. State of Karnataka [9] held that following are the essentials for the offence of criminal misconduct:
  1. To prove the accused is a public servant
  2. Nature and extent of illicit pecuniary resource or property
  3. A known source of income to be proved
  4. An illicit resource must be proved disproportionate to his income

By whom corruption cases can be investigated?
Section 17 takes into account, the persons authorised to investigate.

According to Section 17:
  • In Delhi, an inspector of police.
  • In the Metropolitan area, any person of the rank of assistant commissioner.
  • Elsewhere, Deputy Superintendent of police or equivalent.
  • Police officer below the rank of Inspector of police if authorised by the state.

Section 17A takes into account, the inquiry of decisions taken by public servants in discharge of official duty
According to Section 17A:
  • No police officer can conduct an inquiry to alleged offence by a public servant, where it is relatable to discharge of his official function, without the approval of:
    1. In case employed with affairs of Union, the Union government.
    2. In case employed with affairs of state, the State government.
    3. In case of any other, authority competent to remove him from his office
  • No approval is required for cases involving the arrest of a person on the spot on the above charges.

Sanctions necessary for the prosecution
According to Section 19, to prosecute an accused under the offence mentioned in Section 7,11,13 and 15, prior approval is required from the authority whose affairs are being managed by him or from the person competent to remove him from his office.

In Romesh Lal Jain v. Naginder Singh Rana[10], the Supreme Court held that when a person has left the job or has ceased to be a public servant on the date of cognisance of offence by the court, no sanction is required.

Presumption where public servant accepts gratification other than legal remuneration
According to Section 20, where it is proved that an accused public servant has committed an offence under section 7 or 11, it is presumed that he has taken that illicit advantage so as to perform his duty improperly unless the contrary is proved.

In C.M. Girish babu v. CBI[11], the Supreme Court held that the presumption under Section 20 i.e., the prosecution needs to prove the case without reasonable doubt which can be rebutted by the accused either through cross-examination or by presenting evidence.

Drawbacks of this act:
  1. No provision to tackle corruption in the private sector:
    This law has been unable to tackle corruption in the private sector. This law is only confined to the public sector and deals with the misconduct of the public servants only.
     
  2. Delay in Justice:
    the system of justice is very slow in this law. A/c to section 19[12], prior approval to suspend a public servant before launching prosecution against him delays the case. While investigating, considerable time is taken by authorities to acquire required permissions.
     
  3. Hostile Witness:
    to convict a public servant, the case has to be proved without reasonable doubt. No exception has been put up to this date. Witnesses often change their support because of influence, allurements, etc, and thus the prosecution fails to prove without reasonable doubt. Hence, many accused are declared not guilty on the basis of doubt.

Illustration
One day a person [A] goes to a public office for getting his land documents and he meets a public servant [PS] who is in charge of those documents. A asks PS for those documents but PS compels him to give Rs.20, 000 as gratification other than the official charges of those documents. A is facing a situation where the PS is demanding illicit gratification to perform his public duty. So A decides to complain.
  • Where to go for complaint?
    A can contact the nearby Anti-Corruption Bureau [ACB]. A will have to file an application at that office and show or present some reasonable evidence for that complaint. This complaint is filed by ACB without enrolment and action by the ACB immediately. For this plans are made for the trapping action and the complainant is given instructions for that.
     
  • Actions to be taken?
    When a person complains against corruption, he is provided with a digital voice recorder and is directed to record the conversation between the two regarding the demand of illegal gratification. The person has to once again visit that office and record the conversation so that there exists proof of demand by the Public servant.

    When the person has recorded that conversation, he once again has to contact the ACB and submit the voice recorder. The voice recorder will be checked by the ACB and if there exists any evidence, another complaint is filed and further action is taken.
     
  • Further action to be taken
    The number on the currency which is to be given to the accused is noted by ACB officials and they usually apply a layer of Phenolphthalein on that currency and is then handed over to the complainant and he is directed not to touch the currency and give the currency only in the hands of the accused.

    Phenolphthalein when is mixed with sodium carbonate solution turns the solution to Pink. This helps in the trap action because when the hands of the accused are submerged in the sodium carbonate solution if the solution turns pink it is an indication that the accused has touched those currencies and this becomes proof for the ACB.

Relevant permissions regarding the trap action are taken by the ACB from the District collector but in the name of Secret action. This action is kept secret until executed.

The complainant is directed to go to the office and record the conversation and after giving the bribe, inform the ACB. The ACB then performs the trap action. If the ACB finds that currency with the accused, then the fingers of the accused are submerged into sodium carbonate solution, and if the solution turns pink and the number on the notes are matched, the ACB arrests the accused, and the case is transferred to the court along with that evidence. The accused is firstly suspended by the competent authority before initiating proceedings against him and then the court proceeds.

Conclusion
The Prevention of corruption act has been the primary legislation to define the offence and its penalties. Lack of awareness is one of the most important causes for not to decline corruption cases. The new legislation has improved the old provisions and added some new features but still, there is a long journey to curb corruption. There are a few drawbacks to this legislation. The question of a hostile witness is still left unanswered.

To prove without reasonable doubt has become a loophole for offenders to escape from the penalties and thus this legislation still needs improvements. However, the prevention of corruption act is somehow able to decrease corruption which is evident from the report of transparency international. This act needs to establish more stringent provisions and a better approach to deal with complex cases.

End-Notes:
  1. Leslie Holmes, Corruption A Very Short Introduction32 (Oxford University Press 2015).
  2. SERCO.COM, https://www.serco.com/about/serco-code-of-conduct/our-business/bribery-and-corruption (last visited Oct. 8, 2021).
  3. Prevention of Corruption Act, 1988, https://en.wikipedia.org/w/index.php?title=Prevention_of_Corruption_Act,_1988&oldid=1038790501 (last visited Oct. 11, 2021).
  4. State Of Madhya Pradesh & Ors v. Shri Ram Singh, A.I.R 2000 S.C. 870.
  5. Prevention of Corruption act, 1988, 2, No. 49, Acts of Parliament, 1988 (India).
  6. State Of Maharashtra And Anr. v. Prabhakarrao And Anr., JT 2002 Suppl 1 SC 5, (2002) 7 SCC 636
  7. Prevention of Corruption act, 1988, 2, No. 49, Acts of Parliament, 1988 (India).
  8. Parkash Singh Badal v. State of Punjab , 2007 1 SCC.
  9. M.Krishna reddy v. State, JT 1994 (4) SC 645.
  10. Romesh Lal Jain Vs. Naginder Singh Rana & Ors., AIR 2006 SC 336.
  11. C.M Girish Babu v. CBI C.M Girish Babu v. CBI, 2009 3 SCC 779.
  12. Prevention of Corruption act, 1988, 19, No. 49, Acts of Parliament, 1988 (India).
Written By: Ayush Dewangan, Semester III, B.A. LL.B. (Hons.) - Hidayatullah National Law University

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